Certiorari.

Certiorari is a special proceeding. City of Fargo v. Annexation Review Comm'n, 148 N.W.2d 338, 1966 N.D. LEXIS 149 (N.D. 1966).

Contempt Proceeding.

A contempt proceeding is not remedial in its character and is not a special proceeding. State ex rel. Edwards v. Davis, 2 N.D. 461, 51 N.W. 942 (1892), decided prior to the enactment of §§ 5934 and 5954, Rev. Codes (1895) (see now N.D.C.C. § 27-10-01.1 et seq.).

Criminal Prosecution.

A prosecution for a public offense is an action. State v. Rozum, 8 N.D. 548, 80 N.W. 477 (1899), distinguished, State v. Dahms, 29 N.D. 51, 149 N.W. 965 (1914) and State v. Winbauer, 21 N.D. 161, 129 N.W. 97, 1910 N.D. LEXIS 153 (N.D. 1910).

Disbarment Proceeding.

A disbarment proceeding is a special proceeding. In re Eaton, 7 N.D. 269, 74 N.W. 870, 1898 N.D. LEXIS 58 (N.D. 1898).

Examination of Defendant before Trial.

An examination of defendant before trial is not a special proceeding. West Branch Pants Co. v. Gordon, 51 N.D. 742, 200 N.W. 908, 1924 N.D. LEXIS 72 (N.D. 1924).

Foreclosure of Mortgage.

The procedure to obtain the injunctional order against foreclosure of a mortgage by advertisement was not a special proceeding. Tracy v. Scott, 13 N.D. 577, 101 N.W. 905 (1904), decided prior to the enactment of § 7841, C.L. 1913 (see now N.D.C.C. § 28-27-02).

Mandamus.

Mandamus is a special proceeding. State ex rel. Dakota Hail Ass'n v. Carey, 2 N.D. 36, 49 N.W. 164, 1891 N.D. LEXIS 22 (N.D. 1891); State ex rel. Bickford v. Fabrick, 16 N.D. 94, 112 N.W. 74, 1907 N.D. LEXIS 30 (N.D. 1907).

Pretrial Conference.

As respects the right of appeal, a pretrial conference held under the statute is not a special proceeding, but is an episode in an ordinary proceeding. La Plante v. Implement Dealers Mut. Fire Ins. Co., 73 N.D. 159, 12 N.W.2d 630, 1944 N.D. LEXIS 50 (N.D. 1944).

“Remedy” Defined.

A “remedy” is a measure employed to enforce a right or to redress an injury, and includes civil actions or special proceedings. Petition of Ecklund, 67 N.D. 140, 270 N.W. 347, 1936 N.D. LEXIS 161 (N.D. 1936).

Sale of Real Estate of Decedent.

A petition to sell real estate of decedent to pay debts is a special proceeding. Dow v. Lillie, 26 N.D. 512, 144 N.W. 1082, 1914 N.D. LEXIS 149 (N.D. 1914).

Administration of Decedent’s Estate.

A petition to sell real estate of decedent to pay debts is a special proceeding. Dow v. Lillie, 26 N.D. 512, 144 N.W. 1082, 1914 N.D. LEXIS 149 (N.D. 1914).

In the administration of a decedent’s estate where vendor, who had entered into a written contract, died before completing it, and the party entitled to the conveyance had paid or was ready to pay the purchase price, the enforcement of the contract was a special proceeding. FOX v. FOX, 57 N.D. 368, 221 N.W. 889, 1928 N.D. LEXIS 140 (N.D. 1928).

Appeals.

Normally, appeals were allowed, pursuant to N.D.C.C. § 28-27-02, in “actions,” as actions were defined in N.D.C.C. § 32-01-02 and which were generally commenced by the issuance of a summons, as recognized by N.D. R. Civ. P. 3. However, appeals were also allowed from final orders entered in special proceedings, N.D.C.C. § 28-27-02, and the power to subpoena was not an ordinary proceeding but was a special proceeding, which meant that the state human services agency had a right to appeal from the administrative subpoena that it served on the state insurance reserve fund. State v. N.D. Ins. Reserve Fund, 2012 ND 216, 822 N.W.2d 38, 2012 N.D. LEXIS 230 (N.D. 2012).

Consent to Dismissal.

A party may consent to the dismissal of his action without the consent of his attorney. Paulson v. Lyson, 12 N.D. 354, 97 N.W. 533, 1903 N.D. LEXIS 45 (N.D. 1903).

Criminal Prosecution.

A prosecution for a public offense is an action. State v. Rozum, 8 N.D. 548, 80 N.W. 477 (1899), distinguished, State v. Dahms, 29 N.D. 51, 149 N.W. 965 (1914) and State v. Winbauer, 21 N.D. 161, 129 N.W. 97, 1910 N.D. LEXIS 153 (N.D. 1910).

Foreclosure of Mechanic’s Lien.

An action to foreclose a mechanic’s lien is a civil action. McCormack v. Phillips, 34 N.W. 39, 4 Dakota 506, 1887 Dakota LEXIS 15 (Dakota 1887).

Form of Action Irrelevant.

The words “action” and “proceeding”, as used in this section, include every form of action, whether founded in tort or contract. Greenleaf v. Minneapolis, S. P. & S. S. M. Ry., 30 N.D. 112, 151 N.W. 879, 1915 N.D. LEXIS 97 (N.D. 1915).

Mandamus.

Mandamus is a special proceeding. State v. Fabrick, 16 N.D. 94, 112 N.W. 74 (1907).

On an appeal from an order and judgment of the district court in a mandamus proceeding, the appellate court will not consider questions or review a question not raised in nor considered by the trial court. State ex rel. Chamberlain v. Johnstone, 65 N.D. 727, 262 N.W. 193, 1935 N.D. LEXIS 160 (N.D. 1935).

Repossession of Property.

The repossession by the vendor of a truck covered by a conditional sales contract without legal process is not an “action” within the meaning of the statute. McLean v. Underdal, 73 N.D. 74, 11 N.W.2d 102, 1943 N.D. LEXIS 63 (N.D. 1943).

Tax Intercept Procedure.

Attempted collection of child support arrearages through the tax intercept procedures is not an ordinary proceeding in a court of justice, but rather is in the form of an administrative proceeding conducted before the agency. Therefore, the statute of limitations imposed by N.D.C.C. § 28-01-16 does not apply to the tax intercept procedure. Guthmiller v. North Dakota Dep't of Human Servs., 421 N.W.2d 469, 1988 N.D. LEXIS 86 (N.D. 1988).

Workmen’s Compensation.

A proceeding under the Workmen’s Compensation Act by a claimant against the bureau is a special proceeding. Gotchy v. North Dakota Workmen's Compensation Bureau, 49 N.D. 915, 194 N.W. 663, 1923 N.D. LEXIS 42 (N.D. 1923).

Collateral References.

Action 1.

1 Am. Jur. 2d, Actions, § 4.

1A C.J.S. Actions, §§ 1, 2, 4, 5, 27-29.

Administration of Decedent’s Estate.

A petition to sell real estate to pay debts of decedent is a special proceeding. Dow v. Lillie, 26 N.D. 512, 144 N.W. 1082, 1914 N.D. LEXIS 149 (N.D. 1914).

Proceeding to enforce written contract of vendor who died before he completed it, the party entitled to the conveyance having paid or being ready to pay the purchase price to the administrator, was a special proceeding. FOX v. FOX, 57 N.D. 368, 221 N.W. 889, 1928 N.D. LEXIS 140 (N.D. 1928).

Contempt Proceeding.

A contempt proceeding is not remedial in its character and is not a special proceeding. State ex rel. Edwards v. Davis, 2 N.D. 461, 51 N.W. 942 (1892), decided prior to the enactment of §§ 5934 and 5954, Rev. Codes (1895) (see now N.D.C.C. § 27-10-01.1 et seq.).

Mandamus.

Mandamus is a special proceeding. State ex rel. Dakota Hail Ass'n v. Carey, 2 N.D. 36, 49 N.W. 164, 1891 N.D. LEXIS 22 (N.D. 1891); State ex rel. Bickford v. Fabrick, 16 N.D. 94, 112 N.W. 74, 1907 N.D. LEXIS 30 (N.D. 1907).

On an appeal from an order and judgment of the district court in a mandamus proceeding, the appellate court will not consider questions or review a question not raised in nor considered by the trial court. State ex rel. Chamberlain v. Johnstone, 65 N.D. 727, 262 N.W. 193, 1935 N.D. LEXIS 160 (N.D. 1935).

Workmen’s Compensation.

A proceeding under the Workmen’s Compensation Act by a claimant against the bureau is a special proceeding. Gotchy v. North Dakota Workmen's Compensation Bureau, 49 N.D. 915, 194 N.W. 663, 1923 N.D. LEXIS 42 (N.D. 1923).

Collateral References.

Action 1.

1 Am. Jur. 2d, Actions, § 3.

1A C.J.S. Actions, §§ 1, 2, 4, 5.

Disqualification of Attorney.

Disqualification of an attorney is not a provisional remedy in a civil action. Allen v. White Drug, 346 N.W.2d 279, 1984 N.D. LEXIS 268 (N.D. 1984).

Garnishment.

Garnishment is considered a judicial remedy and is specifically designated a “provisional remedy” in a civil action. In re Da-Sota Elevator Co., 135 B.R. 873, 1991 Bankr. LEXIS 1976 (Bankr. D.N.D. 1991).

Possessory Action.

A possessory action in which the plaintiff sought to recover from the defendant one half of the grain grown on certain land was a provisional remedy. Suchy v. Strain, 51 N.D. 106, 199 N.W. 193, 1924 N.D. LEXIS 152 (N.D. 1924).

Pretrial Examination.

Right to examine defendant before trial is not a provisional remedy. West Branch Pants Co. v. Gordon, 51 N.D. 742, 200 N.W. 908, 1924 N.D. LEXIS 72 (N.D. 1924).

Similarity of Garnishment to Lien.

Practically speaking, a garnishment’s purpose is very similar to that of a lien. The garnishment summons requires a garnishee to withhold property for the benefit of a judgment creditor in order that a judgment creditor be satisfied. Generally, garnished property is to be released if the judgment creditor is satisfied with other property or by agreement of the parties. Likewise, a lender’s reason for obtaining a lien on property is to gain assurance of debt repayment. A lien on property is generally released upon repayment of the obligation on loan. If the obligation is not repayed, the lender may have the right to have the property turned over for debt satisfaction. In re Da-Sota Elevator Co., 135 B.R. 873, 1991 Bankr. LEXIS 1976 (Bankr. D.N.D. 1991).

Application and Construction.

This section does not create any duties, but only provides for a remedy should an established duty be breached. Butts Feed Lots, Inc. v. United States, 690 F.2d 669, 1982 U.S. App. LEXIS 24823 (8th Cir. N.D. 1982).

Assault and Battery.

The measure of damages for assault and battery is the detriment one party has suffered because of the unlawful act of another. Unruh v. Murray, 84 N.W.2d 730, 1957 N.D. LEXIS 140 (N.D. 1957).

Automobile Accident.

Where defendant admitted that it was his negligent act that caused plaintiff’s injuries, the only duty of the jury was to find plaintiff’s damages for those injuries. Lake v. Neubauer, 87 N.W.2d 888, 1958 N.D. LEXIS 63 (N.D. 1958) but see Trade 'N Post, L.L.C. v. World Duty Free Ams., Inc., 2001 ND 116, 628 N.W.2d 707, 2001 N.D. LEXIS 130 (N.D. 2001).

Conversion.

In an action for the claim and delivery of a note and mortgage, the measure of damages is the face amount of the instrument with legal interest to the time of trial. Holt v. Van Eps, 46 N.W. 689, 1 Dakota 206, 1875 Dakota LEXIS 13 (Dakota 1875).

In an action for the conversion of an executory contract for the sale of land, the owner is entitled to compensation for all detriment caused thereby. McKindley v. Citizens State Bank, 36 N.D. 451, 161 N.W. 601, 1917 N.D. LEXIS 163 (N.D. 1917).

False Advertising.

Where defendant engaged in false advertising resulting in a decline in plaintiff’s business and causing plaintiff to counteract with its own advertisements to mitigate damages, plaintiffs were not limited to injunctive relief under the false advertising statutes, and were allowed to collect actual and punitive damages and court costs. Fargo Women's Health Org. v. FM Women's Help & Caring Connection, 444 N.W.2d 683, 1989 N.D. LEXIS 163 (N.D. 1989), overruled in part, Trade 'N Post, L.L.C. v. World Duty Free Ams., Inc., 2001 ND 116, 628 N.W.2d 707, 2001 N.D. LEXIS 130 (N.D. 2001).

Illegal Levy by Sheriff.

The damages recoverable for an illegal levy by a sheriff are measured by the value of the property at the time of the levy, and fair compensation for the time and money expended. Keith v. Haggart, 33 N.W. 465, 4 Dakota 438, 1887 Dakota LEXIS 13 (Dakota 1887).

Malicious Prosecution and False Imprisonment.

The statute applies in an action for malicious prosecution and false imprisonment. Kaeppler v. Red River Valley Nat'l Bank, 8 N.D. 406, 79 N.W. 869, 1899 N.D. LEXIS 26 (N.D. 1899).

Obstruction of Street.

Under the rule an abutting owner is liable for damages resulting from street obstruction. Heckman v. Evenson, 7 N.D. 173, 73 N.W. 427, 1897 N.D. LEXIS 60 (N.D. 1897).

Products Liability.

Whether manufacturer of automobile which burst into flames upon being struck from rear had been negligent in design and placement of gasoline tank and whether rear-end collision of sufficient force to burst tank was reasonably foreseeable were questions for jury in wrongful death action. Johnson v. American Motors Corp., 225 N.W.2d 57, 1974 N.D. LEXIS 146 (N.D. 1974).

Retention of Money.

Interest is the measure of damages for the retention of money that is due and payable to another. Jacobson v. Mutual Benefit Health & Accident Ass'n, 70 N.D. 566, 296 N.W. 545, 1941 N.D. LEXIS 202, 1941 N.D. LEXIS 203 (N.D. 1941).

Weeds, Failure to Destroy.

A landowner is not liable for damages for failure to destroy noxious weeds until after the county commissioners have prescribed the time and manner of the destruction. Langer v. Goode, 21 N.D. 462, 131 N.W. 258, 1911 N.D. LEXIS 112 (N.D. 1911).

Automobile Accident.

Under former N.D.C.C. ch. 39-15, the guest statute, which was held unconstitutional in Jacobs v. Nelson, 67 N.D. 27, 268 N.W. 873 (1936), in an action for injuries by an automobile guest against the host, the guest had the burden of proving that the acts complained of constituted gross rather than ordinary negligence. Johnson v. Hassett, 217 N.W.2d 771, 1974 N.D. LEXIS 245 (N.D. 1974).

Collateral References.

Damages 1.

22 Am. Jur. 2d, Damages, §§ 1 et seq.

25 C.J.S. Damages, §§ 1, 3.

Liability of religious association for damages for intentionally tortious conduct in recruitment, indoctrination, or related activity, 40 A.L.R.4th 1062.

Damages recoverable for wrongful discharge of at-will employee, 44 A.L.R.4th 1131.

Recovery of damages for grief or mental anguish resulting from death of child—modern cases, 45 A.L.R.4th 234.

Recoverability from tortfeasor of cost of diagnostic examinations absent proof of actual bodily injury, 46 A.L.R.4th 1151.

Excessiveness and adequacy of damages for personal injuries resulting in death of minor, 49 A.L.R.4th 1076.

Public contracts: low bidder’s monetary relief against state or local agency for nonaward of contract, 65 A.L.R.4th 93.

Fraud actions: right to recover for mental or emotional distress, 11 A.L.R.5th 88.

Secondary smoke as battery, 46 A.L.R.5th 813.

Recovery for emotional distress based on fear of contracting HIV or AIDS, 59 A.L.R.5th 535.

Products liability: liability for injury or death allegedly caused by defect in mobile home or trailer, 61 A.L.R.5th 473.

Claims for Vicarious and Individual Liability for Infliction of Emotional Distress Derived from Use of Internet and Electronic Communications, 30 A.L.R.6th 241.

Liability of Property Owners to Persons Who Have Never Been on or Near Their Property for Exposure to Asbestos Carried Home on Household Member’s Clothing, 33 A.L.R.6th 325.

Law Reviews.

For Article: The Worth of a Human Life, see 85 N.D. L. Rev. 123 (2009).

Application of Law.

This section relates to subsequent damages arising out of acts done prior thereto, and which are the basis of the cause of action alleged. It does not permit proof of, and recovery of damages for, subsequent acts which are in themselves new causes of action. Mevorah v. Goodman, 74 N.W.2d 103, 1955 N.D. LEXIS 165 (N.D. 1955).

Breach of Contract.

The legal rate of interest is allowable by way of compensation as damages for breach of contract. Stutsman County v. Dakota Trust Co., 47 N.D. 228, 181 N.W. 586, 1921 N.D. LEXIS 91 (N.D. 1921).

Certain.

The word “certain” is not used in the absolute sense, and cannot be construed as embracing only those consequences or elements of damage which are absolutely certain to follow a given injury. Leonard v. North Dakota Coop. Wool Marketing Ass'n, 72 N.D. 310, 6 N.W.2d 576, 1942 N.D. LEXIS 146 (N.D. 1942).

Although trial court properly allowed expert medical witness to testify as to plaintiff’s available options for future treatment, admission of testimony by such expert as to costs of possible future surgery was prejudicial error; “certain” as used in this section required establishment of reasonable medical certainty or probability that future surgery would be necessary. Holecek v. Janke, 171 N.W.2d 94, 1969 N.D. LEXIS 86 (N.D. 1969).

Future damages must be proved with reasonable certainty; they cannot be awarded on the basis of speculative possibilities or conjecture. Olmstead v. Miller, 383 N.W.2d 817, 1986 N.D. LEXIS 287 (N.D. 1986).

Detriment After Commencement of Action.

General and special damages may be awarded for detriment resulting after an action has been commenced or certain to result in the future. Shoemaker v. Sonju, 15 N.D. 518, 108 N.W. 42, 1906 N.D. LEXIS 57 (N.D. 1906); York v. General Util. Corp., 41 N.D. 137, 170 N.W. 312, 1918 N.D. LEXIS 138 (N.D. 1918); Larson v. Russell, 45 N.D. 33, 176 N.W. 998, 1919 N.D. LEXIS 243 (N.D. 1919).

Repossession of Property.

In an action for possession of property and rent, the plaintiff may recover to the day of the verdict or judgment and, in case of appeal, to the disposition of the appeal. McLain v. Nurnberg, 16 N.D. 144, 112 N.W. 243, 1907 N.D. LEXIS 36 (N.D. 1907).

Uncertain Damages.

—Denied.

Where damages sought were both uncertain to occur and wholly speculative in amount, the district court properly denied them. Koch Hydrocarbon Co. v. MDU Resources Group, 988 F.2d 1529, 1993 U.S. App. LEXIS 4555 (8th Cir. N.D. 1993).

Collateral References.

Damages 25-29.

22 Am Jur 2d Damages §§ 480 et seq.

25 C.J.S. Damages, §§ 29-31.

Overflow of land caused by artificial construction or obstruction, 5 A.L.R.2d 302.

Award of “present worth” of prospective losses in action to recover damages for personal injury resulting in death of infant, 14 A.L.R.2d 485.

Validity of state statute providing for periodic payment of future damages in medical malpractice action, 41 A.L.R.4th 275.

Recovery of damages for grief or mental anguish resulting from death of child—modern cases, 45 A.L.R.4th 234.

Arbitration Award.

Award of interest on an arbitration award would be stricken only if shown to be completely irrational. Nelson Paving Co. v. Hjelle, 207 N.W.2d 225, 1973 N.D. LEXIS 176 (N.D. 1973).

Breach of Bond.

In an action on a statutory bond given on a warrant for seizure, damages may be recovered in excess of the penalty to the extent of legal interest from the date of the breach. Krach v. Security State Bank, 43 N.D. 441, 175 N.W. 573, 1919 N.D. LEXIS 52 (N.D. 1919).

Breach of Contract.

The legal rate of interest is allowable by way of compensation as damages for breach of contract. Stutsman County v. Dakota Trust Co., 47 N.D. 228, 181 N.W. 586, 1921 N.D. LEXIS 91 (N.D. 1921).

Where amount due for breach of contract was ascertainable by calculation in accordance with the terms of the contractual agreement, interest was payable on such amount from date of breach. Metcalf v. Security Int'l Ins. Co., 261 N.W.2d 795, 1977 N.D. LEXIS 183 (N.D. 1977).

Where a corporation rejected a former employee’s offer to sell back his stock at book value during an initial sixty-day period called for in a stockholders’ agreement and then later agreed to buy the stock during a separate sixty-day period provided by the stockholders’ agreement for the parties to negotiate a mutually satisfactory price, the former employee had the right to reject the corporation’s belated offer and was awarded damages equal to what he would have received upon liquidation of the corporation and was also awarded interest on the damages calculated from the time the original offer was rejected by the corporation until money was actually paid. KBM, Inc. v. MacKichan, 438 N.W.2d 181, 1989 N.D. LEXIS 68 (N.D. 1989).

Restaurant management company was entitled to recover interest on unpaid management fees on an improperly terminated contract as of the day when the right to recover the unpaid fees vested, which was the day when the management contracts were improperly terminated. Red River Wings, Inc. v. Hoot, Inc., 2008 ND 117, 751 N.W.2d 206, 2008 N.D. LEXIS 118 (N.D. 2008).

Federal district court’s order freezing the insurance agent’s accounts and assets did not prevent the insurer from parting with the agent’s benefit while the order was in effect; this kept the annuity benefit and had the beneficial use of the funds for any purposes of its business, and the agent was entitled to prejudgment interest from January 1, 2003. Huber v. Farmers Union Serv. Ass'n of N.D., 2010 ND 151, 787 N.W.2d 268, 2010 N.D. LEXIS 155 (N.D. 2010).

Damages Capable of Being Made Certain.

Where there was uncontradicted evidence that plaintiff sustained lost profits on more than 500,000 pounds of sunflowers at two to three cents per pound, the damages were capable of being made certain to satisfy the requirements of this section and plaintiff was entitled to recover interest. Robertson Cos. v. Kenner, 311 N.W.2d 194, 1981 N.D. LEXIS 391 (N.D. 1981).

Trial court did not err in upholding jury’s award of interest where ophthalmologist failed to show that the damages awarded against him were uncertain or incapable of being made certain or that the interest was incorrectly computed. Dowhan v. Brockman, 2001 ND 70, 624 N.W.2d 690, 2001 N.D. LEXIS 84 (N.D. 2001).

Date of Commencement.

Where carrier and contractor had entered into express oral contract and carrier performed its obligations pursuant thereto, interest was properly awarded it from invoice date in action to recover transportation charges. Ets-Hokin & Galvan, Inc. v. Maas Transport, Inc., 380 F.2d 258, 1967 U.S. App. LEXIS 5673 (8th Cir. N.D.), cert. denied, 389 U.S. 977, 88 S. Ct. 481, 19 L. Ed. 2d 471, 1967 U.S. LEXIS 188 (U.S. 1967).

Awarding payee corporation, which recovered from bank for losses sustained due to bank’s cashing corporation checks which corporation’s district manager deposited to his personal account, allowance of interest from date of demand was not error since interest could have been allowed from date each check was accepted by bank. Fargo Nat'l Bank v. Massey-Ferguson, Inc., 400 F.2d 223, 1968 U.S. App. LEXIS 5676 (8th Cir. N.D. 1968).

Where the amount of plaintiff’s claim was established by defendant’s accountants prior to transfer later found to be in fraud of creditors, defendants could not complain that the claim was disputed or uncertain after that time, and therefore, plaintiff was entitled to interest from the date the amount of his claim was established, even though that date was prior to the time judgment was entered for him. Stee v. "L" Monte Indus., 247 N.W.2d 641, 1976 N.D. LEXIS 160 (N.D. 1976).

Determination of Amount of Damages.

In an action to recover damage to automobile sustained as the result of an accident where the amount of damages sought to be recovered by plaintiff was not fixed or capable of being made certain by calculation, interest could not be computed until such amount had been determined. Braaten v. Grabinski, 77 N.D. 422, 43 N.W.2d 381, 1950 N.D. LEXIS 138 (N.D. 1950).

Insurance Claims.

Where insured builder of a silo did not submit written proof of loss of his particular interest in the silo to his insurance company as provided under his builders risk policy when the silo was destroyed by winds, but instead filed a claim for the maximum amount of coverage under the policy which claim was denied by the insurance company, and from the other facts it was apparent that the insurance company would have denied the claim even if the insured had submitted written proof of his particular interest, the insured was properly awarded interest from the time of the denial of his claim in a judgment against the insurance company for benefits under the policy. Dolajak v. State Auto. & Casualty Underwriters, 278 N.W.2d 373, 1979 N.D. LEXIS 174 (N.D. 1979).

The district court did not err in determining that the amount of damages was not a sum certain and that, therefore the plaintiff was not entitled to prejudgment interest where the court was faced with a dispute over how much of a loss was covered by an insurance policy and what computation methods should be used to determine the amount of that loss. BancInsure, Inc. v. BNC Nat'l Bank, N.A., 263 F.3d 766, 2001 U.S. App. LEXIS 18494 (8th Cir. N.D. 2001).

Life Insurance.

In action by beneficiary of life policy issued by defendant to recover for the death of the insured, if the plaintiff was entitled to recover the principal sum, she was also entitled as a matter of law to interest on that sum from the day the right to recover the principal sum vested in her. Jacobson v. Mutual Benefit Health & Accident Ass'n, 70 N.D. 566, 296 N.W. 545, 1941 N.D. LEXIS 202, 1941 N.D. LEXIS 203 (N.D. 1941).

Partial Performance.

Where borrower did not tender the February and March 1993 mortgage payments until May 4, 1993, so that by that time, the April and May 1993 payments were also delinquent, the tendered payment did not bring the loan current; borrower therefore did not tender the performance of his obligation, but only tendered partial performance. While an obligation is extinguished by an offer of performance intended to extinguish the obligation, an offer of partial performance is of no effect and borrower was not released from any obligation to pay interest on the debt. Resolution Trust Corp. v. Gosbee, 536 N.W.2d 698, 1995 N.D. LEXIS 140 (N.D. 1995), cert. denied, 516 U.S. 1075, 116 S. Ct. 779, 133 L. Ed. 2d 730, 1996 U.S. LEXIS 520 (U.S. 1996).

Pleading.

This section does not waive the ordinary rules of pleading in matters relating to the recovery of interest. Steen v. Neva, 37 N.D. 40, 163 N.W. 272, 1917 N.D. LEXIS 71 (N.D. 1917).

Where a party is entitled to recover definite sum as damages on day certain, he is also entitled to recover interest thereon from that day, and such interest need not be specially demanded in pleading. Adamsen Constr. Co. v. Altendorf, 152 N.W.2d 576, 1967 N.D. LEXIS 86 (N.D. 1967).

Prejudgment Interest.

—In General.

Although judgment did not conform to the order for judgment because the judgment included prejudgment interest not mentioned in the order, prejudgment interest was required by this section; landlord was entitled to recover damages certain or capable of being made certain by calculation. Village West Assoc. v. Boeder, 488 N.W.2d 376, 1992 N.D. LEXIS 153 (N.D. 1992).

Plaintiffs were entitled to prejudgment interest from the date of the last payment under their agreement until the day a new judgment was entered. Kaler v. Kraemer, 1999 ND 237, 603 N.W.2d 698, 1999 N.D. LEXIS 263 (N.D. 1999).

District court abused its discretion in awarding prejudgment interest from the dates the Supplemental Revenue Assistance Payments Program funds were transferred from a debtor to a law firm, the law firm was the party sought to be held liable for the fraudulent transfers, the creditor's right to recover did not vest until the firm transferred the funds, the Supreme Court of North Dakota had held the district court erred in holding the firm liable for the transfer of funds to a debtor's designee, and thus, the firm was only liable for prejudgment interest from when funds designated as attorney fees were removed from the law office trust account and placed in the office business account. PHI Fin. Servs. v. Johnston Law Office, P.C., 2016 ND 20, 874 N.W.2d 910, 2016 N.D. LEXIS 20 (N.D. 2016).

—Denied.

Refusal to grant prejudgment interest on damages awarded was proper. Koch Hydrocarbon Co. v. MDU Resources Group, 988 F.2d 1529, 1993 U.S. App. LEXIS 4555 (8th Cir. N.D. 1993).

—Prisoner Medical Care.

In action seeking payment for medical bills for treatment of prisoner in county jail, hospitals were not entitled to prejudgment interest because their claims were not certain; although the county’s obligation to pay for a prisoner’s medical care is fixed by statute, the language in N.D.C.C. § 12-44.1-14(6) is ambiguous, and because the supreme court had not previously construed this section, the hospitals’ claims were uncertain and unliquidated. United Hosp. v. D'Annunzio, 514 N.W.2d 681, 1994 N.D. LEXIS 86 (N.D. 1994).

Public Dump.

The statute relating to interest on damages has no application to actions for damages sustained by an owner of realty by the establishment and operation of a public dump by the city near the owner’s realty. Donaldson v. City of Bismarck, 71 N.D. 592, 3 N.W.2d 808, 1942 N.D. LEXIS 94 (N.D. 1942).

Rate of Prejudgment Interest.

In the absence of a specific contractual rate of interest, prejudgment interest must be calculated at the prescribed legal rate of interest in legal and equitable actions. Hirschkorn v. Severson, 319 N.W.2d 475, 1982 N.D. LEXIS 282 (N.D. 1982).

Suit on Account.

Where plaintiff, who brought action to recover the balance due upon an account, was entitled to interest as a matter of right, the jury had no discretion as to its allowance. Weber Chimney Co. v. Riley, 39 N.D. 487, 167 N.W. 753, 1918 N.D. LEXIS 45 (N.D. 1918).

Unjust Enrichment.

In an action based on unjust enrichment, plaintiff did not have a vested right of recovery until judgment was rendered, and trial court did not abuse its discretion in denying interest on the amount of recovery for the time prior to the rendering of the judgment. Midland Diesel Serv. & Engine Co. v. Sivertson, 307 N.W.2d 555, 1981 N.D. LEXIS 311 (N.D. 1981).

Collateral References.

Damages 66-69.

22 Am. Jur. 2d, Damages, §§ 462 et seq.

Date of verdict or date of entry of judgment thereon as beginning of interest period on judgment, 1 A.L.R.2d 479.

Preferential payment recovered by trustee in bankruptcy, interest on, 4 A.L.R.2d 327.

Breach of contract for the sale of a commodity, interest as element of damages recoverable in action for, 4 A.L.R.2d 1388.

Specific performance, interest on rents and profits as recoverable by purchaser asserting right to, 7 A.L.R.2d 1204.

Temporary use and occupancy: damages for taking of property for temporary use and occupancy as including interest, 7 A.L.R.2d 1309.

Interpleaded or impleaded disputed funds, interest on judgment awarding, 15 A.L.R.2d 473.

Real estate broker’s statutory bond, recovery of interest in action on, 17 A.L.R.2d 1012, 1035.

Vendee’s recovery of interest as element of damages where vendor is unable or refuses to convey, 17 A.L.R.2d 1300, 1365.

Governmental unit: absence of required demand as affecting recovery of interest on claim against a governmental unit in absence of provision in contract or express statutory provision, 24 A.L.R.2d 928.

Rights as between vendor and vendee under land contract in respect of interest, 25 A.L.R.2d 951, 975.

Warehouseman guilty of negligence causing injury to, or destruction of, goods of a perishable nature, interest recoverable from, 32 A.L.R.2d 910.

Alimony, right to interest on unpaid, 33 A.L.R.2d 1455.

Rescission: recovery of interest on purchase price upon rescission by buyer of sale of domestic animal for breach of warranty, 35 A.L.R.2d 1273, 1274.

Detention of property, interest on damages for period before judgment for, 36 A.L.R.2d 337, 413.

Eminent domain, interest on damages for period before judgment for property taken under power of, 36 A.L.R.2d 337, 413.

Automobile collision insurance policy, recovery of interest by insured in action under, 43 A.L.R.2d 327.

Probate: interest on decree or judgment of probate court allowing a claim against estate or making an allowance for services, 54 A.L.R.2d 814.

Coexecutor’s or coadministrator’s liability for interest for defaults or wrongful acts of fiduciary in handling estate, 65 A.L.R.2d 1019, 1068.

Trees or shrubbery, interest as element of damages recoverable for destruction of, or injury to, 69 A.L.R.2d 1335.

Allowance of damages to successful plaintiff or relator in mandamus, 73 A.L.R.2d 903.

Commercial paper, interest on damages recoverable for conversion or loss of, 85 A.L.R.2d 1349.

Tax refund: right to interest on refund or credit in absence of specific controlling statute, 88 A.L.R.2d 823.

Eminent domain: liability, upon abandonment of eminent domain proceedings, for interest on award or judgment, 92 A.L.R.2d 355, 411.

Wrongful death damages, prejudgment interest on, 96 A.L.R.2d 1104.

Construction contract, allowance of prejudgment interest on builder’s recovery in action for breach of, 60 A.L.R.3d 487.

Measure of damages for destruction of or injury to fruit, nut, or other productive trees, 90 A.L.R.3d 800.

Measure of damages in action for breach of warranty of title to personal property under UCC sec. 2-714, 94 A.L.R.3d 583.

Measure of damages for injury to or destruction of shade or ornamental tree or shrub, 95 A.L.R.3d 508.

Measure and elements of damages in action against garageman based on failure to properly perform repair or service on motor vehicle, 1 A.L.R.4th 347.

Special or consequential damages recoverable, on account of delay in delivering possession, by purchaser of real property awarded specific performance, 11 A.L.R.4th 891.

Validity and construction of state statute or rule allowing or changing rate of prejudgment in tort actions, 40 A.L.R.4th 147.

Measure and elements of damages recoverable for attorney’s negligence in preparing or conducting litigation — Twentieth Century cases, 90 A.L.R.4th 1033.

Law Reviews.

Summary of significant decisions rendered by the North Dakota Supreme Court in 1990 relating to vendor-purchaser, 66 N.D. L. Rev. 879 (1990).

North Dakota Supreme Court Review, (Red River Wings, Inc. v. Hoot, Inc., 2008 ND 117, 751 N.W.2d 206 (2008)), see 85 N. Dak. L. Rev. 503 (2009).

Conversion Actions.

District court erred by instructing the jury it could elect not to include interest in a credit corporation’s conversion award because, the corporation elected to receive damages under N.D.C.C. § 32-03-23(1) and should have been awarded interest in addition to the value of the tractor at the time of the conversion as the award of interest was mandatory. N.D.C.C. § 32-03-23 applies specifically to conversion while N.D.C.C. § 32-03-05, applies to torts in general. Case Credit Corp. v. Oppegard's, Inc., 2005 ND 141, 701 N.W.2d 891, 2005 N.D. LEXIS 174 (N.D. 2005).

Dissolution of Partnership.

Prejudgment interest at six per cent per annum on partner’s share of accumulated profits following dissolution of the partnership was upheld. Tarnavsky v. Tarnavsky, 147 F.3d 674, 1998 U.S. App. LEXIS 12129 (8th Cir. N.D. 1998).

District court properly adopted an estate’s accounting of a partnership’s profits and losses, ordered the estate to pay the decedent’s nephew the remaining balance of his one-fourth interest from the sale of the decedent’s real property, and denied interest on the distribution because none of the partnership’s financial documents included the nephew’s wage expense in laboring for a partnership in which he, the decedent, and the decedent’s brother were partners, the nephew did not present evidence showing the estate breached an obligation or committed fraud, and his earlier distributions from the estate did not include interest. Moore v. Moore (In re Estate of Moore), 2020 ND 249, 951 N.W.2d 219, 2020 N.D. LEXIS 243 (N.D. 2020).

Judgment.

A judgment must be supported by and conform to the verdict, decision, or findings with respect to the allowance of interest and the amount thereof. Braaten v. Grabinski, 77 N.D. 422, 43 N.W.2d 381, 1950 N.D. LEXIS 138 (N.D. 1950).

Partnership Property, Illegal Sale.

Interest from the date of sale was properly allowable on the amount wrongfully withheld where it is established, in an action for accounting brought by partner against partner, that the defendant had wrongfully sold partnership property and had wrongfully withheld payment for interest of other partners. Engstrom v. Larson, 79 N.D. 188, 55 N.W.2d 579, 1952 N.D. LEXIS 112 (N.D. 1952).

Question for Jury.

The allowance of interest under this section is a question for the jury. Johnson v. Northern Pac. Ry., 1 N.D. 354, 48 N.W. 227, 1890 N.D. LEXIS 41 (N.D. 1890).

In an action to enjoin packing plant from polluting river, the allowance of interest is discretionary with the trier of the facts and not obligatory, and interest may not be awarded as a matter of law. Storley v. Armour & Co., 107 F.2d 499, 1939 U.S. App. LEXIS 2778 (8th Cir. N.D. 1939).

Supreme Court refused to disallow jury’s award of prejudgment interest on non-economic damages citing this section’s provision of discretion to the trier-of-fact to award such interest. Kreidt v. Burlington N. R.R., 2000 ND 150, 615 N.W.2d 153, 2000 N.D. LEXIS 160 (N.D. 2000).

Jury acted within its discretion in awarding interest on past noneconomic damages in a personal injury case, but prejudgment interest was not available as to future damages. Gonzalez v. Tounjian, 2003 ND 121, 665 N.W.2d 705, 2003 N.D. LEXIS 134 (N.D. 2003).

Tort Action.

In a tort action, the allowance of interest is discretionary with the jury. Seckerson v. Sinclair, 24 N.D. 625, 140 N.W. 239, 1913 N.D. LEXIS 20 (N.D. 1913).

In a tort action, a return of a verdict in excess of the ad damnum is presumed to include interest. Reichert v. Northern Pac. Ry., 39 N.D. 114, 167 N.W. 127, 1917 N.D. LEXIS 144 (N.D. 1917), limited, Froemke v. Parker, 41 N.D. 408, 171 N.W. 284, 1919 N.D. LEXIS 89 (N.D. 1919), overruled in part, Sollin v. Wangler, 2001 ND 96, 627 N.W.2d 159, 2001 N.D. LEXIS 104 (N.D. 2001).

Prejudgment interest in tort cases is governed by this section, not by N.D.C.C. § 32-03-04, which governs prejudgment interest in contract cases. Roise v. Kurtz, 1998 ND 228, 587 N.W.2d 573, 1998 N.D. LEXIS 224 (N.D. 1998).

Unjust Enrichment.

In an action based on unjust enrichment, plaintiff did not have a vested right of recovery until judgment was rendered, and trial court did not abuse its discretion in denying interest on the amount of recovery for the time prior to the rendering of the judgment. Midland Diesel Serv. & Engine Co. v. Sivertson, 307 N.W.2d 555, 1981 N.D. LEXIS 311 (N.D. 1981).

Workers’ Compensation Action.

The term “damages” within the meaning of N.D.C.C. § 65-01-09 includes the interest recovered by the injured worker in suing. Therefore, the bureau properly included interest recovered by the worker in calculating its subrogation claim. Kavadas v. North Dakota Workers Compensation Bureau, 466 N.W.2d 839, 1991 N.D. App. LEXIS 4 (N.D. Ct. App. 1991).

Collateral References.

Validity and construction of state statute or rule allowing or changing rate of prejudgment interest in tort actions, 40 A.L.R.4th 147.

Fraud actions: right to recover for mental or emotional distress, 11 A.L.R.5th 88.

Recovery for emotional distress based on fear of contracting HIV or AIDS, 59 A.L.R.5th 535.

Attachment.

In an action for damages on an undertaking given upon the issuance of an attachment, the damages recoverable refer only to the injury done to the property taken and not to any collateral or consequential damages resulting to the owner by the trespass. Thompson v. Webber, 29 N.W. 671, 4 Dakota 240, 1886 Dakota LEXIS 14 (Dakota 1886).

Benefit of Bargain.

The law incorporates the notion that contract damages should give the nonbreaching party the benefit of the bargain by awarding a sum of money that will put that person in as good a position as if the contract had been performed. Leingang v. Mandan Weed Bd., 468 N.W.2d 397, 1991 N.D. LEXIS 64 (N.D. 1991).

Common Law.

The rule laid down in the statute, in effect, is the common-law rule that compensation is recoverable for all detriment proximately and naturally caused by the breach of contract. Hayes v. Cooley, 13 N.D. 204, 100 N.W. 250, 1904 N.D. LEXIS 31 (N.D. 1904).

The measure of damages for breach of a contract is the same as at common law. Needham v. H. S. Halverson & Co., 22 N.D. 594, 135 N.W. 203, 1912 N.D. LEXIS 59 (N.D. 1912).

Construction Contract.

Award of damages to construction company for cost of necessary and agreed changes in contract, which were due to the fact that the city had not prepared site in accordance with specifications, was properly based on total cost of performance, where it was virtually impossible to separate equitable adjustment of consideration from damages and the total cost was supported by substantial evidence. Moorhead Constr. Co. v. Grand Forks, 508 F.2d 1008, 1975 U.S. App. LEXIS 16751 (8th Cir. N.D. 1975).

Trial court’s award of damages to excavation company based on load count was not clearly erroneous where developer failed to perform an initial cross-sectioning of area to be excavated as required by the contract, thereby preventing a more accurate calculation. Wachter v. Gratech Co., 2000 ND 62, 608 N.W.2d 279, 2000 N.D. LEXIS 65 (N.D. 2000).

Company argued that the district court erred in holding the company liable to the county for prompt payment interest, but this was not ordered, and instead, the district court ordered the company to share in satisfying the damages that flowed from its breach of contract; prompt payment interest was a detriment at least partially caused by the company’s failure to honor its contractual commitment, the company was not in a position to complain about mitigation of damages, and the damages findings were not clearly erroneous. C&C Plumbing & Heating, LLP v. Williams County, 2014 ND 128, 848 N.W.2d 709, 2014 N.D. LEXIS 126 (N.D. 2014).

District court did not abuse its discretion in denying the motion for a new trial based on excessive damages influenced by prejudice or passion where the jury heard testimony regarding the total cost of the building, the structural deficiencies of the building, and the potential costs for demolition of the building, the jury was instructed that potential damages were not limited to the contract price, and the contractor did not object to allegedly prejudicial statements made during closing statements. Jalbert v. Eagle Rigid Spans, Inc., 2017 ND 50, 891 N.W.2d 135, 2017 N.D. LEXIS 44 (N.D. 2017).

Difference of Value.

The purpose of the difference of value alternative is to avoid unreasonable economic waste when the destruction of usable property and subsequent reconstruction of property is necessary for completion in accordance with the construction contract. Biteler's Tower Serv. v. Guderian, 466 N.W.2d 141, 1991 N.D. LEXIS 16 (N.D. 1991).

Diminution in Value.

Because the estimated cost to repair the property to return it to the condition when the commercial lease began was approximately $2.7 million, and the evidence established the cost of repairing the property was significantly higher than the diminution in value, diminution of value was the correct measure of damages; however, because the evidence established the property was worth the same regardless of whether the repairs were made, there would be no damages under the diminution of value measure, and the district court did not err in failing to award the lessor damages for its breach of contract claim related to the lessee’s failure to repair the parking area. Three Aces Props. LLC v. United Rentals (N. Am.), Inc., 2020 ND 258, 952 N.W.2d 64, 2020 N.D. LEXIS 270 (N.D. 2020).

Employment Contract.

One who has wrongfully and fraudulently put an end to a contract of employment cannot say that the party injured has not been damaged at least to the amount of what he has been induced, fairly and in good faith, to lay out and expend, including his own services. McLean v. News Publishing Co., 21 N.D. 89, 129 N.W. 93, 1910 N.D. LEXIS 152 (N.D. 1910).

The correct measure of damages due an improperly discharged schoolteacher was his wages for the entire school term less the amount earned or that he could have earned by reasonable efforts in employment obtained after his discharge. Miller v. South Bend Special Sch. Dist., 124 N.W.2d 475, 1963 N.D. LEXIS 123 (N.D. 1963).

A school district being sued for breach of employment contract must assume the burden of proving that the wrongfully discharged teacher did not reasonably attempt to minimize his damages by seeking other employment. Miller v. South Bend Special Sch. Dist., 124 N.W.2d 475, 1963 N.D. LEXIS 123 (N.D. 1963).

Where a wrongfully discharged employee has been able to obtain only one type of substitute employment during a three-month period from the time of his wrongful discharge to the time of trial, the probability that he will be unable to obtain other employment during the remaining two months of the original term of employment is sufficiently great that damages are clearly ascertainable. Miller v. South Bend Special Sch. Dist., 124 N.W.2d 475, 1963 N.D. LEXIS 123 (N.D. 1963).

District court’s findings of damages were within the evidence and testimony provided. The evidence supported the district court’s findings that because defendant employees breached their proprietary information agreements and employment contracts, plaintiff employer would have suffered damages. SolarBee, Inc. v. Walker, 2013 ND 110, 833 N.W.2d 422, 2013 N.D. LEXIS 111 (N.D. 2013).

Employer did not show the employer overpaid employees commissions because (1) the parties presented conflicting damages evidence, and (2) a lack of inventories barred finding overpayment under a certain contract. Serv. Oil, Inc. v. Gjestvang, 2015 ND 77, 861 N.W.2d 490, 2015 N.D. LEXIS 77 (N.D. 2015).

Farm Equipment, Failure to Deliver.

Damages to grain from rain were recoverable against a seller for failure to deliver a threshing machine on date fixed in the contract. Lindsay v. Nichols & Shepard Threshing Mach. Co., 59 N.D. 313, 229 N.W. 808, 1930 N.D. LEXIS 144 (N.D. 1930).

Full Contract Price.

The general rule is that the seller’s remedy for the buyer’s breach of an executory contract to purchase an ongoing business is to recover damages for the difference between the contract price and the fair market value of the business on the date of the breach. However, in the case of an executed contract, where the seller has fully performed and the buyer has breached by refusing to pay the agreed-upon price, the seller may sue for the full contract price. D.G. Porter, Inc. v. Fridley, 373 N.W.2d 917, 1985 N.D. LEXIS 399 (N.D. 1985).

Insurance Policy, Failure to Defend Insured.

Where an insurer refuses to defend actions against insured arising out of a risk which insurer claims is not covered by the policy, and such risk is thereafter found by the court to be within the policy coverage, the failure to defend is a breach of the insurance contract which renders insurer liable for all costs and expenses incurred by insured in defending the actions. Prince v. Universal Underwriters Ins. Co., 143 N.W.2d 708, 1966 N.D. LEXIS 164 (N.D. 1966).

Limit on Recovery.

For a breach of contract, the injured party is entitled to compensation for the loss suffered, but can recover no more than would have been gained by full performance. Leingang v. Mandan Weed Bd., 468 N.W.2d 397, 1991 N.D. LEXIS 64 (N.D. 1991).

Where the lessee did not meet the higher standard required to support an award of specific performance, by clearly showing that the legal remedy of damages was inadequate, and where evidence fell short of proving monetary damages could not have been a sufficient remedy for securing and farming land in another location, the trial court did not abuse its discretion in failing to award specific performance. The mere uncertainty as to the exact amount does not preclude recovery, yet, damages that are not clearly ascertainable in their nature and origin cannot be recovered pursuant to N.D.C.C. § 32-03-09. Damages for breach of a farm lease beyond one year are not speculative and uncertain as a matter of law; however, on the record in this case, damages were not clearly ascertainable and would have been speculative. Livinggood v. Balsdon, 2006 ND 11, 709 N.W.2d 723, 2006 N.D. LEXIS 17 (N.D. 2006).

Lost Profits.

A party is entitled to recover for the detriment caused by the defendant’s breach, including lost profits if they are reasonable and not speculative. Leingang v. Mandan Weed Bd., 468 N.W.2d 397, 1991 N.D. LEXIS 64 (N.D. 1991).

Where a plaintiff offers evidence estimating anticipated profits with reasonable certainty, they may be awarded. Leingang v. Mandan Weed Bd., 468 N.W.2d 397, 1991 N.D. LEXIS 64 (N.D. 1991).

Mitigation of Damages.

In a case in which a farmer sued a property owner for breach of a farm lease, the evidence supported the trial court’s finding that the farmer unsuccessfully tried to mitigate his damages by looking for other farmland to rent. Even if the farmer had been able to find other farmland to rent, it would not have been replacement land but land to expand his farming operation, and therefore it would not have reduced his damages. Hanson v. Boeder, 2007 ND 20, 727 N.W.2d 280, 2007 N.D. LEXIS 20 (N.D. 2007).

In an action by a general contractor against a subcontractor for breach of contract, the court did not clearly err in failing to offset the contractor’s damage award by the cost of unused pipe that the contractor purchased and failed to resell and for its refusal to allow the subcontractor to retry the contracted work as the evidence could support view that the leftover pipe could not be sold in the marketplace and that the subcontractor’s proposals to retry the work were not feasible; thus, the finding that the general contractor did not fail to mitigate damages was not clearly erroneous. Coughlin Constr. Co. v. Nu-Tec Indus., 2008 ND 163, 755 N.W.2d 867, 2008 N.D. LEXIS 166 (N.D. 2008).

Trial court did not clearly err by determining that the truck owner failed to mitigate its damages by not taking the truck to another repair shop after paying for the completed repairs on the truck to avoid future lost profits. Peterbilt of Fargo, Inc. v. Red River Trucking, LLC, 2015 ND 140, 864 N.W.2d 276, 2015 N.D. LEXIS 139 (N.D. 2015).

Modified Net Profit.

The method used by the trial court to derive net profits (a “modified net profit” approach) was improper, because it did not restrict the expenses that were deductible from the contract price to those which would have been incurred but for the breach of the contract, i.e., those expenses plaintiff did not have to pay because the defendant kept him from doing the work. Leingang v. Mandan Weed Bd., 468 N.W.2d 397, 1991 N.D. LEXIS 64 (N.D. 1991).

Proximately Caused.

Damages are proximately caused by a breach when they directly and naturally flow from the breach. First Nat'l Bank v. Burich, 367 N.W.2d 148, 1985 N.D. LEXIS 300 (N.D. 1985).

District court did not apply an incorrect legal standard on causation in finding that no damages resulted from the breach of an assignment of a sublease because it was not shown that a lender would have cured a breach of the sublease if given notice and opportunity; the proximate causation standard under this section did not incorporate a "reasonable lender" standard. First Dakota Nat'l Bank v. Eco-Energy, LLC, 881 F.3d 615, 2018 U.S. App. LEXIS 15951 (8th Cir. Neb. 2018).

Real Estate Contract.

This section was inapplicable to action for damages for breach of an agreement to convey an interest in real estate. Missouri Slope Livestock Auction v. Wachter, 107 N.W.2d 349, 1961 N.D. LEXIS 59 (N.D. 1961).

It was reversible error to base instructions on this section in action against seller for delay in conveying real estate; instructions should have been given on wrongful occupation of the property under N.D.C.C. § 32-03-21. Bumann v. Maurer, 203 N.W.2d 434, 1972 N.D. LEXIS 112 (N.D. 1972).

Seed Grain Warranty.

On the sale of seed grain under an implied warranty of fitness, the proper measure of damages for breach of the warranty resulting in a partial failure of the crop is the diminution in the crop value due to the breach. McLane v. F. H. Peavey & Co., 72 N.D. 468, 8 N.W.2d 308, 1943 N.D. LEXIS 82 (N.D. 1943).

Service Contract.

Where the contract is for service and the breach prevents the performance of that service, the value of the contract consists of two items: (1) The party’s reasonable expenditures toward performance, including costs paid, material wasted, and time and services spent on the contract, and (2) the anticipated profits. Leingang v. Mandan Weed Bd., 468 N.W.2d 397, 1991 N.D. LEXIS 64 (N.D. 1991).

Statutory Rule.

Where a contract is silent upon the measure of damages for its breach, the statutory rule prevails. Russell v. Olson, 22 N.D. 410, 133 N.W. 1030, 1911 N.D. LEXIS 60 (N.D. 1911).

Substantial Compliance.

Substantial compliance does not release a party from its obligation to respond in damages for injury resulting from a breach of contract. Biteler's Tower Serv. v. Guderian, 466 N.W.2d 141, 1991 N.D. LEXIS 16 (N.D. 1991).

Where a construction company had an oral contract with property owner to pour two concrete driveways on his property and the court had determined that the property owner had acquiesced to a time-and-materials price for the project and where the property owner had claimed a reduction in the balance owed to the construction company based upon a failure to substantially perform the contract, the district court did not err in refusing to reduce the amount owed to the construction company as the owner had not provided sufficient evidence regarding the diminution of value of the driveway to satisfy the requirements of N.D.C.C. § 32-03-09. There was no testimony from any expert regarding the usual life expectancy of similar concrete driveways; the value of this driveway, other than the time-and-materials invoice prepared by the construction company; or the cost of removing and replacing the driveway and, thus, the district court could reasonably conclude that the testimony that the life expectancy was reduced “30-40%” was too speculative to find diminution of value. Curtis Constr. Co. v. Am. Steel Span, Inc., 2005 ND 218, 707 N.W.2d 68, 2005 N.D. LEXIS 262 (N.D. 2005).

Collateral References.

Damages 117-126.

22 Am. Jur. 2d, Damages, §§ 44 et seq.

25 C.J.S. Damages, §§ 108-121.

Right to recover, in action for breach of contract, expenditures incurred in preparation for performance, 17 A.L.R.2d 1300, 1365.

Market price: necessity that buyer, relying on market price as measure of damages for seller’s breach of sales contract, show that goods in question were available for market at price shown, 20 A.L.R.2d 819.

Measure of damages for refusal of corporation or its agent to register or effectuate transfer of stock, 22 A.L.R.2d 12.

Manufacturer: measure of damages for buyer’s breach of contract to purchase article from dealer or manufacturer’s agent, 24 A.L.R.2d 1008.

Architects: measure of damages recoverable from architect or other person furnishing plans for defects or insufficiency of work attributable thereto, 25 A.L.R.2d 1085.

Procuring breach of contract, 26 A.L.R.2d 1227.

Automobile collision insurance policy, measure of recovery by insured under, 43 A.L.R.2d 327.

Measure and elements of damages recoverable for breach of contract to support person, 50 A.L.R.2d 613.

Attorney: measure and basis of attorney’s recovery on express contract fixing noncontingent fees, where he is discharged without cause or fault on his part, 54 A.L.R.2d 604.

Employer’s damages for breach of employment contract by employee’s terminating employment, 61 A.L.R.2d 1008, 1010.

Lessee’s breach of agreement to erect building, measure and items of damages for, 63 A.L.R.2d 1110.

Marriage: measure and elements of damages for breach of contract to marry, 73 A.L.R.2d 553.

Minerals: damages for breach of implied obligation of purchaser to conduct search for, or to develop or work premises for, minerals other than oil and gas, 76 A.L.R.2d 721, 748.

Grower: measure of damages in action by grower under contract between grower of vegetable or fruit crops, and purchasing processor, packer, or canner, 87 A.L.R.2d 732, 779.

Lease: breach of contract to lease by lessor, 88 A.L.R.2d 1024, 1032.

Advertiser: measure of damages, to advertiser, for radio or television station’s breach or wrongful termination of contract, 90 A.L.R.2d 1199.

Water well drilling contract, driller’s damages for breach of, 90 A.L.R.2d 1346, 1405.

Notice: extent of recovery for attempt to terminate employment or agency contract upon shorter notice than that stipulated in contract, 96 A.L.R.2d 272, 277.

Drilling: right and measure of recovery for breach of obligation to drill exploratory oil or gas wells, 4 A.L.R.3d 284.

Profits: recovery for loss of profits from contemplated sale or use of land, where vendor fails or refuses to convey, 11 A.L.R.3d 719.

Schoolteacher: elements and measure of damages in action by schoolteacher for wrongful discharge, 22 A.L.R.3d 1047.

Franchises: damages to franchisee for failure of franchisor of national brand or service to provide the services or facilities contracted for, 41 A.L.R.3d 1436.

Insurer’s liability for consequential or punitive damages for wrongful delay or refusal to make payments due under contract, 47 A.L.R.3d 314.

Liability of insurance broker or agent to insured for failure to procure insurance, 64 A.L.R.3d 398.

Wills: measure of damages for breach of contract to will property, 65 A.L.R.3d 632.

Liability of insurance agent or broker on ground of inadequacy of life, health, and accident insurance procured, 72 A.L.R.3d 735.

Liability of insurance agent or broker on ground of inadequacy of property insurance coverage procured, 72 A.L.R.3d 747.

Liability for interference with invalid or unenforceable contract, 96 A.L.R.3d 1294.

Measure and elements of damages in action against garageman based on failure to properly perform repair or service on motor vehicle, 1 A.L.R.4th 347.

Liability of termite or other pest control or inspection contractor for work or representations, 32 A.L.R.4th 682.

Recovery of punitive damages for breach of building or construction contract, 40 A.L.R.4th 110.

Amount of appropriation as limitation on damages for breach of contract recoverable by one contracting with government agency, 40 A.L.R.4th 998.

Modern status of rule as to whether cost of correction or difference in value of structures is proper measure of damages for breach of construction contract, 41 A.L.R.4th 131.

Punitive damages for interference with contract or business relationship, 44 A.L.R.4th 1078.

Damages for breach of contract as affected by income tax considerations, 50 A.L.R.4th 452.

Equipment leasing expense as element of construction contractor’s damages, 52 A.L.R.4th 712.

Recoverability of compensatory damages for mental anguish or emotional distress for breach of contract to lend money, 52 A.L.R.4th 826.

Application to commercial lease of rule that lease may be canceled only for “material” breach, 54 A.L.R.4th 595.

Recoverability of compensatory damages for mental anguish or emotional distress for breach of service contract, 54 A.L.R.4th 901.

Construction and effect of “changed conditions” clause in public works or construction contract with state or its subdivision, 56 A.L.R.4th 1042.

Specificity of description of premises as affecting enforceability of contract to convey real property — modern cases, 73 A.L.R.4th 135.

Recovery of attorneys’ fees and costs of litigation incurred as result of breach of agreement not to sue, 9 A.L.R.5th 933.

Liability of contractor who abandons building project before completion for liquidated damages for delay, 15 A.L.R.5th 376.

Liability of insurance agent or broker on ground of inadequacy of liability-insurance coverage procured, 60 A.L.R.5th 165.

Automobile Damage.

Fact that automobile owner was no mechanic and had not had considerable experience in repairing automobiles did not preclude him from expressing opinion whether it was possible to restore automobile to condition it was in immediately before collision where owner had been employed on occasion as appraiser, had appraised 25 to 30 automobiles, had taught computation of depreciation in business mathematics course and had, in connection therewith, made many visits to body shop where he discussed practical problems of appraisals with other instructors; owner was entitled to out-of-pocket costs of $182 for transportation while automobile was being repaired even though he recovered damages in amount based on diminution in car’s market value and did not replace it. Intlehouse v. Rose, 153 N.W.2d 810, 1967 N.D. LEXIS 94 (N.D. 1967).

Automobile Engine.

Where engine was negligently repaired by garage and had to be replaced by defendant while on a trip out of state, and the cost of replacement was less than the estimated cost of repairing the damaged engine, trial court properly assessed car owner’s damages as replacement cost of the engine. Randall v. Anderson, 286 N.W.2d 515, 1979 N.D. LEXIS 336 (N.D. 1979).

Basis for Calculating Damages.

Where plaintiffs damaged the defendants’ land by placing approximately 3556 cubic yards of fill over 1.8 acres of the land, defendants were awarded damages based upon their proposed method of restoration which required removing the fill placed on the land and restoring the land to its previous condition. North Shore v. Wakefield, 530 N.W.2d 297, 1995 N.D. LEXIS 52 (N.D. 1995).

Construction with Other Law.

Civil tort statute, N.D.C.C. § 32-03-09.1, explicitly references repair costs and diminutions in fair market value, but N.D.C.C. § 32-03-09.2, which provides for criminal liability for willful property damage, simply states that any person convicted of criminal mischief shall be responsible for the actual damages caused to real and personal property. The legislature chose the broader term “actual damages” because it sought to ensure that criminal victims and courts would have greater flexibility in measuring damages in cases of criminal mischief; implicitly, this flexibility encompasses use of replacement costs, among other measures, where appropriate. State v. Tupa, 2005 ND 25, 691 N.W.2d 579, 2005 N.D. LEXIS 25 (N.D. 2005).

Diminution in Value.

Diminution in value method for calculating measure of damages is applicable only when restoration of property is impossible or impracticable; restoration is impracticable when it costs more than amount by which property value has been reduced. Roll v. Keller, 356 N.W.2d 154, 1984 N.D. LEXIS 407 (N.D. 1984).

The thrust of this section is that either the cost to repair or the diminution in value, whichever is lower, is the measure which should be applied. Jablonsky v. Klemm, 377 N.W.2d 560, 1985 N.D. LEXIS 432 (N.D. 1985).

Evidence.

Because there was no evidence in the record establishing the cost of restoration, trial court did not err in awarding damages based on diminution in value of plaintiffs’ lands in action for damages caused by improper drainage by adjacent landowner. Lang v. Wonnenberg, 455 N.W.2d 832, 1990 N.D. LEXIS 104 (N.D. 1990).

Loss of Use.

Damages for loss of use may be awarded in addition to diminution in the value of the property. Lang v. Wonnenberg, 455 N.W.2d 832, 1990 N.D. LEXIS 104 (N.D. 1990).

Plaintiff’s Election of Measure of Damages.

When either diminution in value or cost of restoration is the appropriate measure of damages in a given case, plaintiff has the right to elect the measure deemed more accurate and, if defendant disagrees, he has the burden to prove the alternative measure is more appropriate. Plaintiffs were not required to present evidence of both measures of value. Lang v. Wonnenberg, 455 N.W.2d 832, 1990 N.D. LEXIS 104 (N.D. 1990).

Summary judgment appropriate where the plaintiff had been fully compensated for the loss of his pickup truck when he accepted the cost of the repair to his vehicle and could not then demand damages in the amount of the difference between the cost of a new truck and the amount received upon trading in the repaired truck. Sullivan v. Pulkrabek, 2000 ND 107, 611 N.W.2d 162, 2000 N.D. LEXIS 110 (N.D. 2000).

Restitution.

State had no statutory right to appeal a restitution order in a criminal case because, although an order for restitution affected with finality the State’s ability to obtain recompense for a crime victim, the victim could seek recovery of damages independent from any action by the State in a civil action to recover other or additional damages suffered as a result of the crime; and the right of restitution would not be undermined or lost without appellate review as the victim could maintain a civil action seeking recovery of damages. State v. Conry, 2020 ND 247, 951 N.W.2d 226, 2020 N.D. LEXIS 237 (N.D. 2020).

Law Reviews.

North Dakota Supreme Court Review (State ex rel. v. Center Mutual Insurance Co.), 83 N.D. L. Rev. 1085 (2007).

Bankruptcy.

Where a judgment creditor obtained a default judgment against a Chapter 7 debtor on a claim of vandalism under N.D.C.C. § 32-03-09.2, in connection with the damage to property of the creditor’s insured, the debtor was not collaterally estopped from seeking a discharge of the debt because that portion of N.D.C.C. § 32-03-09.2 that provided that any judgment rendered pursuant to it shall not be discharged in bankruptcy was superseded by 11 U.S.C.S. § 523(a)(6) pursuant to U.S. Const. art. I, § 8. Acuity v. Wieser (In re Wieser), 2007 Bankr. LEXIS 4493 (Bankr. D.N.D. Apr. 4, 2007).

Method of Determining Damages.

Civil tort statute, N.D.C.C. § 32-03-09.1, explicitly references repair costs and diminutions in fair market value, but N.D.C.C. § 32-03-09.2, which provides for criminal liability for willful property damage, simply states that any person convicted of criminal mischief shall be responsible for the actual damages caused to real and personal property. The legislature chose the broader term “actual damages” because it sought to ensure that criminal victims and courts would have greater flexibility in measuring damages in cases of criminal mischief; implicitly, this flexibility encompasses use of replacement costs, among other measures, where appropriate. State v. Tupa, 2005 ND 25, 691 N.W.2d 579, 2005 N.D. LEXIS 25 (N.D. 2005).

There is a fundamental connection between the aim of N.D.C.C. § 32-03-09.2 and N.D.C.C. § 12.1-32-08, the criminal restitution statute; specifically, there is a strong correlation between the term “actual damages” in N.D.C.C. § 32-03-09.2 and the requirement that damages be “actually incurred” under the restitution statute. Thus, if replacement costs are applicable in one of these contexts, it seems only reasonable to permit their use in the other context as well. State v. Tupa, 2005 ND 25, 691 N.W.2d 579, 2005 N.D. LEXIS 25 (N.D. 2005).

Exclusive Nature of Workers’ Compensation Act.

It is significant that this section is not part of Title 65, the Workers’ Compensation Act. The courts have previously said that “the North Dakota workers’ compensation program is mandatory, comprehensive, and exclusive. All rights and obligations under the program are determined by Title 65, N.D.C.C.” Because the Workers’ Compensation Act is comprehensive, the courts do not look to other portions of the Century Code when defining rights and obligations pursuant to it or when construing its provisions. Effertz v. North Dakota Workers' Compensation Bureau, 481 N.W.2d 218, 1992 N.D. LEXIS 28 (N.D. 1992).

Warrants, Special Assessment Funds.

If warrants on special assessment funds, and interest coupons attached thereto, do not specify the rate of interest, they draw interest at the statutory rate. Drexel State Bank v. La Moure, 207 F. 702, 1913 U.S. Dist. LEXIS 1346 (D.N.D. 1913).

Covenant of Seizin.

Where the conveyance passes nothing to the grantee, the measure of damages for the breach of covenant of seizin is prima facie the consideration paid by the grantee with interest. Beulah Coal Mining Co. v. Heihn, 46 N.D. 646, 180 N.W. 787, 1920 N.D. LEXIS 71 (N.D. 1920).

Covenants Running with Land.

The only covenants which run with the land are those of warranty for quiet enjoyment, and for further assurance. Gale v. Frazier, 30 N.W. 138, 4 Dakota 196, 1886 Dakota LEXIS 15 (Dakota 1886), aff'd, 144 U.S. 509, 12 S. Ct. 674, 36 L. Ed. 521, 1892 U.S. LEXIS 2094 (U.S. 1892); Bowne v. Wolcott, 1 N.D. 497, 48 N.W. 426, 1891 N.D. LEXIS 15 (N.D. 1891).

Variations from Rule.

The statutory rule is not iron clad but is subject to the same variations as the common-law rule previously existing. Bowne v. Wolcott, 1 N.D. 415, 48 N.W. 336, 1891 N.D. LEXIS 6 (N.D. 1891).

Collateral References.

Measure of damages for breach of covenant for quiet enjoyment in lease, 41 A.L.R.2d 1414, 1454.

Assessment of General Damages.

In action for breach of contract to sell land, an allegation in the complaint that the plaintiff has sustained damages in a certain amount is sufficient to justify the assessment of general damages. Merritt v. Adams County Land & Inv. Co., 29 N.D. 496, 151 N.W. 11, 1915 N.D. LEXIS 25 (N.D. 1915).

Delay in Conveying.

This section applies to situations in which specific performance of real estate contract is impossible or impracticable; where performance is merely delayed, N.D.C.C. § 32-03-21 applies. Bumann v. Maurer, 203 N.W.2d 434, 1972 N.D. LEXIS 112 (N.D. 1972).

Expenses of Buyer.

In an action for damages for breach of contract to convey real estate, the measure of damages is the difference between the price to be paid under the contract and the value of the land at the time of breach, plus the expenses incurred by the buyer in examining title and preparing to use the land. Missouri Slope Livestock Auction v. Wachter, 107 N.W.2d 349, 1961 N.D. LEXIS 59 (N.D. 1961).

Collateral References.

Vendor and Purchaser 351.

77 Am. Jur. 2d, Vendor and Purchaser, §§ 441 et seq.

92 C.J.S. Vendor and Purchaser, §§ 687-695.

Specific performance, legal damages recoverable as for breach of contract by purchaser asserting right to, 7 A.L.R.2d 1204.

Vendee’s recovery under executory contract for purchase of real property where vendor is unable or refuses to convey, 17 A.L.R.2d 1300, 1365.

Preparation: right to recover, in action for breach of contract to convey lands, expenditures incurred in preparation for performance, 17 A.L.R.2d 1300, 1365.

Profits: recovery for loss of profits from contemplated sale or use of land, where vendor fails or refuses to convey, 11 A.L.R.3d 719.

Special or consequential damages recoverable, on account of delay in delivering possession, by purchaser of real property awarded specific performance, 11 A.L.R.4th 891.

Ambiguous Earnest Money Clause.

Summary judgment in a real estate purchase dispute was error where the earnest money clause in the purchase agreement providing for liquidated damages “without prejudice of other rights and legal remedies” was ambiguous, requiring extrinsic evidence to determine the intentions of the parties. Dosland v. Netland, 424 N.W.2d 141, 1988 N.D. LEXIS 131 (N.D. 1988).

Measure of Damages.

—In General.

The measure of damages to the seller is the difference between the contract price and the salable or market value of the land at the time of the breach, after giving the vendee credit for any sums paid. Gerhardt v. Fleck, 256 N.W.2d 547, 1977 N.D. LEXIS 156 (N.D. 1977).

This section allows as damages the difference between the contract price and the salable or market value of the property at the time of the breach, after giving credit for any sums paid. Hagan v. Havnvik, 421 N.W.2d 56, 1988 N.D. LEXIS 72 (N.D. 1988).

—Alternative Measure Not Prohibited.

This section does not prohibit parties from establishing an alternative measure of liquidated damages for breach of contracts for the purchase of real estate. Fisher v. Schmeling, 520 N.W.2d 820, 1994 N.D. LEXIS 191 (N.D. 1994).

—-Excess.

District court did not err in entering a default judgment award which was different than that prayed for in the demand for judgment as N.D.C.C. § 32-03-14 allowed for damages for breach of an agreement to buy realty by determining the excess of the amount which would have been due to the seller under the contract over the value of the property, and N.D.R.Civ.P. 54(c) did not specify that the damages prayed for be in the seller’s complaint, but rather that it be included in the demand for judgment. Shull v. Walcker, 2009 ND 142, 770 N.W.2d 274, 2009 N.D. LEXIS 148 (N.D. 2009).

Collateral References.

Vendor and Purchaser 330.

77 Am. Jur. 2d, Vendor and Purchaser, §§ 441 et seq.

92 C.J.S. Vendor and Purchaser, § 636.

Provision in land contract for liquidated damages upon default of purchaser as affecting right of vendor to maintain action for damages for breach of contract, 39 A.L.R.5th 33.

Assault Committed with Malice.

Exemplary damages may be awarded for an assault where it is committed with malice, either actual or presumed, and malice authorizing such recovery may be presumed from the wanton and reckless manner in which the wrongful act was committed. Shoemaker v. Sonju, 15 N.D. 518, 108 N.W. 42, 1906 N.D. LEXIS 57 (N.D. 1906).

Breach of Obligation.

The measure of damages for breach of an obligation which does not arise out of a contract is an amount that will compensate for all detriment proximately caused. Wilson v. Northern Pac. Ry., 30 N.D. 456, 153 N.W. 429, 1915 N.D. LEXIS 153 (N.D. 1915).

Award of derivative damages based on an analysis by the minority limited partners’ expert witness who calculated the reasonable profits and distributions that could have been realized if the majority limited partners in two partnerships had not breached their fiduciary duties and dissolved the partnerships was not unreasonable and speculative. Red River Wings, Inc. v. Hoot, Inc., 2008 ND 117, 751 N.W.2d 206, 2008 N.D. LEXIS 118 (N.D. 2008).

Common-Law Rule.

The measure of damages in tort is the same as at common law. Needham v. H. S. Halverson & Co., 22 N.D. 594, 135 N.W. 203, 1912 N.D. LEXIS 59 (N.D. 1912).

Conversion.

In an action to recover for an alleged wrongful levy by defendant, as county sheriff, upon certain property upon which the plaintiff held a chattel mortgage, the measure of damage was the value of the property at the time of the levy, and a fair compensation to the mortgagee for the time and money properly expended in pursuit of the property. Keith v. Haggart, 33 N.W. 465, 4 Dakota 438, 1887 Dakota LEXIS 13 (Dakota 1887).

The measure of damages for the wrongful conversion of an executory contract for the sale of land, except when otherwise expressly provided, is the amount which will compensate the party injured for all detriment approximately caused thereby. McKindley v. Citizens State Bank, 36 N.D. 451, 161 N.W. 601, 1917 N.D. LEXIS 163 (N.D. 1917).

Exemplary damages may be awarded for conversion when the conduct of the wrongdoer has been oppressive, malicious, or fraudulent. Lamoreaux v. Randall, 53 N.D. 697, 208 N.W. 104, 1926 N.D. LEXIS 28 (N.D. 1926).

Delay in Transportation.

Where a passenger sustains damage by reason of misinformation as to trains given by carrier’s employees, the carrier is liable for the actual damages sustained by the passenger by reason of such misdirection. Weeks v. Great N. Ry., 43 N.D. 426, 175 N.W. 726, 1919 N.D. LEXIS 65 (N.D. 1919).

Future Earnings.

In an action for wrongful death, the trial court should have given the defendant’s offered instruction to reduce to present cash value the amount that decedent probably would have contributed to his family’s support in the future, but failure to give such instruction was not reversible error where the instructions did not preclude reduction to present value and where the verdict was reasonable as tested by the present value standard. Geier v. Tjaden, 74 N.W.2d 361, 1955 N.D. LEXIS 166 (N.D. 1955).

Since this section includes the concept of present compensation for loss of future earning power, defendant in personal injury action was not entitled to personal summary judgment on plaintiff’s prayer for damages arising out of loss of future profits from farming operation; even though compensable, the loss of future profits in a farming venture is usually so speculative that any evidence addressed to proving it will be subjected to harsh scrutiny and no verdict or finding of fact of loss of profit will be allowed to stand unless the proof is clear and unequivocal. Shelver v. Simonsen, 369 F. Supp. 4, 1973 U.S. Dist. LEXIS 10613 (D.N.D. 1973).

Growing Crops.

Where attachment was improvidently issued and the taking of plaintiffs’ property prevented the harvest of crop at the proper time so that the crop was damaged by the weather, the detriment was proximately caused by the act of wrongful attachment and deprivation of possession, even though at the time of attachment the creditor did not anticipate any such result. Kelly v. Stockgrowers Credit Corp., 66 N.D. 209, 263 N.W. 717, 1935 N.D. LEXIS 189 (N.D. 1935).

In tort action by farmer against herbicide manufacturer for damage to wheat caused by defective herbicide, farmer was not entitled to recover the costs of the herbicide, the costs of incorporating the herbicide into the soil, or the costs of planting the wheat as these items of expense did not flow from the injury caused by the defective herbicide, but preceded that injury, and constituted a restitution claim while the farmer had elected to proceed on a tort claim, and farmer could not recover the costs of discing the land, cultivating, applying the fertilizer, or the cost of the wheat seed as these costs were incurred as part of the normal farming operations without regard to the damage caused by the defective herbicide; measure of damages recoverable by the farmer was the value at maturity which the probable crop would have had except for the injury, less the value the injured crop actually had at maturity, and less any reduction in amount and value of labor and expense attributable to the reduced yield. Johnson v. Monsanto Co., 303 N.W.2d 86, 1981 N.D. LEXIS 233 (N.D. 1981).

Injury to Property.

The measure of damages for the total injury to ice in the plaintiff’s ice house by reason of the collapse of the building caused by the excavation on the defendant’s land was the market value of such ice at the time and place of the injury, with interest. Slattery v. Rhud, 23 N.D. 274, 136 N.W. 237, 1912 N.D. LEXIS 89 (N.D. 1912).

In an action to recover damages for injury to store building, plaintiff’s damages was the difference between the value of the building prior to the injury and its value afterwards, where there was no evidence as to the cost of repairs. Harke v. Ewald, 51 N.D. 828, 200 N.W. 1009, 1924 N.D. LEXIS 76 (N.D. 1924).

Where grocery store fell into excavation on adjoining lot, anticipated profits could be used as a measure of damages only if reasonably certain in character and the loss was the proximate result of a tort. Truscott v. Peterson, 78 N.D. 498, 50 N.W.2d 245, 1951 N.D. LEXIS 127 (N.D. 1951).

Where fixtures are wrongfully severed from realty of which they have become a part, the measure of damages is the value of the fixtures as they were in place as a part of the realty immediately preceding removal. Gussner v. Mandan Creamery & Produce Co., 78 N.D. 594, 51 N.W.2d 352, 1952 N.D. LEXIS 68 (N.D. 1952).

Where a stubble fire prevented use of a pasture for grazing cattle for a full year, the measure of damages for the negligent setting of such fire was the value of the use of the property to the plaintiff for the time he was deprived of such use. Schmeet v. Schumacher, 137 N.W.2d 789, 1965 N.D. LEXIS 113 (N.D. 1965).

Insanity Proceedings, Unwarranted Prosecution.

The unwarranted prosecution of an insanity proceeding is a legal wrong for which the party injured may be compensated. Pickles v. Anton, 49 N.D. 47, 189 N.W. 684, 1922 N.D. LEXIS 9 (N.D. 1922).

Jury Instructions.

In an action for damages for personal injuries arising from negligence of defendants, giving of an instruction on measure of damages which was almost a verbatim quote of this section was not error. Kuntz v. Stelmachuk, 136 N.W.2d 810, 1965 N.D. LEXIS 126 (N.D. 1965).

Jury instruction on damages for deceit was proper where the instruction was close to a verbatim expression of the statutory measure of damages set out in this section. Delzer v. United Bank, 1997 ND 3, 559 N.W.2d 531, 1997 N.D. LEXIS 9 (N.D. 1997).

Killing of Animal.

An owner may recover special damages for rearing a suckling colt due to the killing of the dam. McDonell v. Minneapolis, S. P. & S. S. M. Ry., 17 N.D. 606, 118 N.W. 819, 1908 N.D. LEXIS 91 (N.D. 1908).

Misrepresentation and Deceit.

In an action to recover damages for alleged deceit in the exchange of property for corporate stock, where plaintiff had affirmed the contract after discovering the deceit, the measure of damages, in the absence of a claim for special damages, was the difference in value between what was received or parted with, and what would have been received or parted with, had there been no fraudulent representation. Beare v. Wright, 14 N.D. 26, 103 N.W. 632, 1905 N.D. LEXIS 36 (N.D. 1905).

In an action for deceit in misrepresenting the value of land sold, the measure of damages, under section 1967 of the Civil Code of 1877, was the loss sustained by reason of the fraud. Glaspell v. Northern P. R. Co., 43 F. 900, 1890 U.S. App. LEXIS 1782 (C.C.D.N.D. 1890), rev'd, 144 U.S. 211, 12 S. Ct. 593, 36 L. Ed. 409, 1892 U.S. LEXIS 2073 (U.S. 1892).

Mitigation of Damages.

In an action to recover damages, plaintiff has a duty to minimize or mitigate his damages and is not entitled to recover for damages which could have been avoided by reasonable efforts under the existing circumstances. Johnson v. Monsanto Co., 303 N.W.2d 86, 1981 N.D. LEXIS 233 (N.D. 1981).

Personal Injuries.

A woman housekeeper with no income suing for injuries received in a collision, when the tort is admitted or proven, is entitled to reasonable compensation for loss of capacity to perform her duties as housekeeper and for physical injuries, pain, and suffering. Lake v. Neubauer, 87 N.W.2d 888, 1958 N.D. LEXIS 63 (N.D. 1958).

In an action for damages for personal injuries sustained as the result of an automobile accident, the evidence supported a finding that plaintiff was entitled to $57,000 general damages and the fact that plaintiff was a member of the armed forces did not mean that he could not recover the reasonable value of medical and hospital services rendered without charge by a government hospital. Gillis v. Farmers Union Oil Co., 186 F. Supp. 331, 1960 U.S. Dist. LEXIS 3433 (D.N.D. 1960).

Proximate Cause.

If two causes unite to produce an injury, one the negligent act or omission of a municipality and the other something for which neither the municipality nor the party injured was responsible, and if the injury could not have resulted except for the negligent act or omission of the municipality, such act or omission is the proximate cause of the injury. Ouverson v. Grafton, 5 N.D. 281, 65 N.W. 676, 1895 N.D. LEXIS 33 (N.D. 1895).

Where death was caused by a pulmonary embolism following injuries in a vehicular collision caused by defendant’s negligence, it was immaterial whether the embolism was caused directly by the injuries or resulted from surgery made necessary by the injuries, as in either event the chain of causation reaches back to the defendant’s negligence. Geier v. Tjaden, 74 N.W.2d 361, 1955 N.D. LEXIS 166 (N.D. 1955).

Special Damages.

In order to recover for special damages, such damages must be proved to a reasonable degree of certainty and must not be too remote. Johnson v. Monsanto Co., 303 N.W.2d 86, 1981 N.D. LEXIS 233 (N.D. 1981).

Trespass.

Only such damages may be recovered where a trespass is not willful as will compensate the injured party for all detriment proximately caused by such trespass. Peterson v. Conlan, 18 N.D. 205, 119 N.W. 367, 1909 N.D. LEXIS 3 (N.D. 1909).

Wrongful Death.

A substantial loss will be presumed in the wrongful death of a minor child, and pecuniary loss need not be established by proof in dollars and cents. Perleberg v. General Tire & Rubber Co., 221 N.W.2d 729, 1974 N.D. LEXIS 175 (N.D. 1974).

Collateral References.

Damages 95-116.

22 Am. Jur. 2d, Damages, §§ 119 et seq.

25 C.J.S. Damages, §§ 105-107, 122-164.

Overflow of land caused by artificial construction or obstruction, 5 A.L.R.2d 302.

Marriage of child, or probability of marriage, as affecting measure of recovery by parents in death action, 7 A.L.R.2d 1380.

Changes in cost of living or in purchasing power of money as affecting damages for personal injuries or death, 12 A.L.R.2d 611.

Market value: measure of damages for conversion or loss of, or damage to, personal property having no market value, 12 A.L.R.2d 902.

Death of infant, measure and elements of damages for personal injury resulting in, 14 A.L.R.2d 485.

Prospective damages: award of “present worth” of prospective losses in action to recover damages for personal injury resulting in death of infant, 14 A.L.R.2d 485.

Privacy, damages for invasion of right of, 14 A.L.R.2d 750, 57 A.L.R.3d 16.

Board or lodging furnished to injured person in connection with hospital or nursing care, effect on damages recoverable in personal injury action, 18 A.L.R.2d 659.

Social club or similar society, damages recoverable for expulsion from, 20 A.L.R.2d 344, 393.

Church or religious society, damages recoverable for suspension or expulsion from, 20 A.L.R.2d 421.

Corporate stock: measure of damages for refusal of corporation or its agent to register or effectuate transfer of stock, 22 A.L.R.2d 12.

Interference with employment, measure of damages for, 26 A.L.R.2d 1273.

Contract, damages for procuring breach of, 26 A.L.R.2d 1227.

Insurance application: measure of damages in tort action arising out of delay in passing upon application for insurance, 32 A.L.R.2d 487, 536.

Warehousemen: damages recoverable from warehousemen for negligence causing injury to, or destruction of, goods of a perishable nature, 32 A.L.R.2d 910.

Infants: what items of damages on account of personal injury to infant belong to him, and what to parent, 32 A.L.R.2d 1060.

Assistant: cost of hiring substitute or assistant during incapacity of injured party as item of damages in action for personal injury, 37 A.L.R.2d 364.

Attachment: recovery of value of use of property wrongfully attached, 45 A.L.R.2d 1221.

Conditional seller’s misconduct in connection with repossession and resale of property, damages for, 49 A.L.R.2d 15.

Pollution of stream, measure and elements of damages for, 49 A.L.R.2d 253, 267.

Annuity: cost of annuity as factor for consideration in fixing damages, 53 A.L.R.2d 1454.

Employment: damages recoverable by employer from third person tortiously killing or injuring employee, 57 A.L.R.2d 802, 812.

Trees and shrubbery, measure of damages for destruction of or injury to, 69 A.L.R.2d 1335.

Credit or financial condition of third person, measure of damages recoverable for fraud as to, 72 A.L.R.2d 943.

Airplane, measure of damages for destruction of or injury to, 73 A.L.R.2d 719.

Livestock: measure and elements of damages in action other than one against a carrier, 79 A.L.R.2d 677.

Commercial paper, measure of damages for conversion or loss of, 85 A.L.R.2d 1349.

Earth: measure of damages for wrongful removal of earth, sand, or gravel from land, 1 A.L.R.3d 801.

Motor vehicle damaged or destroyed, recovery for loss of use of, 18 A.L.R.3d 497.

False imprisonment or arrest or malicious prosecution, attorneys’ fees as element of damages in action for, 21 A.L.R.3d 1068.

Sterilization or birth control procedures, medical malpractice, and measure and elements of damages, in connection with, 27 A.L.R.3d 906.

Shock: right to recover damages in negligence for fear of injury to another, or shock or mental anguish at witnessing such injury, 29 A.L.R.3d 1337.

Corporate stock or certificate, measure of damages for conversion of, 31 A.L.R.3d 1286.

Discrimination: recovery of damages for emotional distress resulting from racial, ethnic, or religious abuse or discrimination, 40 A.L.R.3d 1290.

Business profits: profits of business as factor in determining loss of earnings or earning capacity in action for personal injury or death, 45 A.L.R.3d 345.

Measure of damages for destruction of or injury to fruit, nut, or other productive trees, 90 A.L.R.3d 800.

Measure of damages for injury to or destruction of shade or ornamental tree or shrub, 95 A.L.R.3d 508.

Liability for interference with invalid or unenforceable contract, 96 A.L.R.3d 1294.

Per diem or similar mathematical basis for fixing damages for pain and suffering, 3 A.L.R.4th 940.

Liability for interference with at will business relationship, 5 A.L.R.4th 9.

Liability for wrongful autopsy, 18 A.L.R.4th 858.

Effect of anticipated inflation on damages for future losses—modern cases, 21 A.L.R.4th 21.

Loss of enjoyment of life as a distinct element or factor in awarding damages for bodily injury, 34 A.L.R.4th 293.

Validity of state statute providing for periodic payment of future damages in medical malpractice action, 41 A.L.R.4th 275.

Validity and construction of statute or ordinance limiting the kinds or amount of actual damages recoverable in tort action against governmental unit, 43 A.L.R.4th 19.

Third-party tortfeasor’s right to have damages recovered by employee reduced by amount of employee’s workers’ compensation benefits, 43 A.L.R.4th 849.

Punitive damages for interference with contract or business relationship, 44 A.L.R.4th 1078.

Recovery of damages for grief or mental anguish resulting from death of child—modern cases, 45 A.L.R.4th 234.

Excessiveness or adequacy of damages awarded for personal injuries resulting in death of persons engaged in farming, ranching, or agricultural labor, 46 A.L.R.4th 220.

Recoverability from tortfeasor of cost of diagnostic examinations absent proof of actual bodily injury, 46 A.L.R.4th 1151.

Excessiveness or adequacy of damages awarded for personal injuries resulting in death of homemaker, 47 A.L.R.4th 100.

Excessiveness or adequacy of damages awarded for personal injuries resulting in death of persons engaged in trades and manual occupations, 47 A.L.R.4th 134.

Excessiveness or inadequacy of compensatory damages for false imprisonment or arrest, 48 A.L.R.4th 165.

Excessiveness or adequacy of damages awarded for personal injuries resulting in death of retired persons, 48 A.L.R.4th 229.

Excessiveness or inadequacy of compensatory damages for defamation, 49 A.L.R.4th 1158.

Future disease or condition or anxiety relating thereto, as element of recovery, 50 A.L.R.4th 13.

Excessiveness or adequacy of damages awarded for personal injuries resulting in death of persons engaged in professional, white-collar, and nonmanual occupations, 50 A.L.R.4th 787.

Excessiveness or inadequacy of compensatory damages for malicious prosecution, 50 A.L.R.4th 843.

Liability of employer, supervisor, or manager for intentionally or recklessly causing employee emotional distress, 52 A.L.R.4th 853.

Parent’s right to recover for loss of consortium in connection with injury to child, 54 A.L.R.4th 112.

Business interruption, without physical damage, as actionable, 65 A.L.R.4th 1126.

Measure and element of damages for pollution of well or spring, 76 A.L.R.4th 629.

Recovery of damages for loss of consortium resulting from death of child—modern status, 77 A.L.R.4th 411.

Measure and elements of damages recoverable for attorney’s negligence in preparing or conducting litigation — Twentieth Century cases, 90 A.L.R.4th 1033.

Fraud actions: right to recover for mental or emotional distress, 11 A.L.R.5th 88.

Damages for killing or injuring dog, 61 A.L.R.5th 635.

Nonuse of seatbelt as reducing amount of damages recoverable, 62 A.L.R.5th 537.

Validity of state statutory cap on punitive damages, 103 A.L.R.5th 379.

Exemplary or punitive damages for pharmacist’s wrongful conduct in preparing or dispensing medical prescription — Cases not under Consumer Product Safety Act (15 U.S.C.A. § 2072), 109 A.L.R.5th 397.

Liability of Property Owners to Persons Who Have Never Been on or Near Their Property for Exposure to Asbestos Carried Home on Household Member’s Clothing, 33 A.L.R.6th 325.

Law Reviews.

North Dakota Legal Malpractice: A Summary of the Law, 70 N.D. L. Rev. 615 (1994).

For Article: The Worth of a Human Life, see 85 N.D. L. Rev. 123 (2009).

North Dakota Supreme Court Review, (Red River Wings, Inc. v. Hoot, Inc., 2008 ND 117, 751 N.W.2d 206 (2008)), see 85 N. Dak. L. Rev. 503 (2009).

Assignment of Rents.

An assignment of rents by the owner of a life estate in real property which a county had entered and possessed under a tax deed, assigned no right or claim against the county. Sailer v. Mercer County, 75 N.D. 123, 26 N.W.2d 137, 1947 N.D. LEXIS 52 (N.D. 1947).

Delay in Sale of Real Property.

In action for breach of real estate contract based on seller’s delay in conveying the property, instructions on damages should have been based on this section, and not on N.D.C.C. §§ 32-03-09 or 32-03-13. Bumann v. Maurer, 203 N.W.2d 434, 1972 N.D. LEXIS 112 (N.D. 1972).

Right to Recover.

The relationship of landlord and tenant is not essential to a recovery of the value of the use and occupation of real property. Belakjon v. Hilstad, 76 N.D. 298, 35 N.W.2d 637, 1949 N.D. LEXIS 57 (N.D. 1949).

Defendant's use of plaintiff's property for disposal of off-lease saltwater was intentional and amounted to civil trespass because its use of property for that purpose went beyond its rights under lease. Injunction against further use of property for that purpose was appropriate, and plaintiff was entitled to statutory damages in same amount as would be appropriate if restitution principles were applied, but plaintiff was not entitled to punitive damages because it failed to prove that defendant acted with oppression, fraud, or actual malice. Raaum Estates v. Murex Petroleum Corp., 2017 U.S. Dist. LEXIS 103345 (D.N.D. July 5, 2017).

Collateral References.

Delay: compensation or damages awarded purchaser for delay in conveyance of land, 7 A.L.R.2d 1204.

Trespass: damages in action of trespass by tenant against stranger wrongfully interfering with his possession, 12 A.L.R.2d 1192, 1210.

Measure of damages for tenant’s failure to surrender possession of rented premises, 32 A.L.R.2d 582, 611.

Delay: measure of vendee’s recovery in action for damages for vendor’s delay in conveying real property, 74 A.L.R.2d 578.

Special or consequential damages recoverable, on account of delay in delivering possession, by purchaser of real property awarded specific performance, 11 A.L.R.4th 891.

Alternative Remedies.

This section recognizes alternatives for one whose personal property is converted: (1) recovery of the value of the property with interest from the time of its conversion, or (2) recovery of the highest market value of the property at any time between the conversion and the verdict, but without interest. The injured party is given the benefit of any substantial appreciation in value after the conversion and before the verdict, but has the alternative option to collect interest. National Bank v. International Harvester Co., 421 N.W.2d 799, 1988 N.D. LEXIS 38 (N.D. 1988).

This section sets out alternative bases for valuing converted property: (1) The value of the property with interest from the time of its conversion, or (2) the highest market value of the property at any time between the conversion and the verdict, but without interest. Harwood State Bank v. Charon, 466 N.W.2d 601, 1991 N.D. LEXIS 25 (N.D. 1991).

In seeking damages for conversion, a property owner is required to first elect to utilize either N.D.C.C. § 32-03-23(1) or N.D.C.C. § 32-03-23(2) to establish the value of the property; if the owner elects a return of the converted property, the present value of that property must be considered in mitigation of damages established under subsection 1 or 2 of N.D.C.C. § 32-03-23, and the owner is also entitled to damages under N.D.C.C. § 32-03-23(3), which include a fair compensation for the time and money properly expended in pursuit of the property. Buri v. Ramsey, 2005 ND 65, 693 N.W.2d 619, 2005 N.D. LEXIS 71 (N.D. 2005).

Attorneys’ Fees.

The phrase “time and money properly expended in pursuit of the property” is not an express authorization for attorneys’ fees. Harwood State Bank v. Charon, 466 N.W.2d 601, 1991 N.D. LEXIS 25 (N.D. 1991).

Trust beneficiary who succeeded on a claim that a condominium was purchased with funds converted from the trust was entitled under N.D.C.C. § 32-03-23 to recover attorney’s fees and costs incurred in the pursuit of the converted property that had a demonstrable purpose independent of the litigation. Anderson v. Sullivan, 2007 U.S. Dist. LEXIS 58037 (D.N.D. Aug. 7, 2007).

Certificates of Deposit.

In an action for the conversion of certificates of deposit, protest for nonpayment prior to conversion was evidence of reduced value of the certificates. First Nat'l Bank v. Dickson, 40 N.W. 351, 5 Dakota 286, 1888 Dakota LEXIS 30 (Dakota 1888).

Conversion of Parts.

Where, pursuant to the terms of its dealership agreement, the sellers credited the dealers from whom parts were repossessed the current cost to dealers of each part returned, plus a five percent handling charge, the current price paid by dealers was relevant evidence of wholesale value. However, where the dealership agreement clearly provided that the five percent was for packaging the parts for return, not for freight expenses, and no other evidence suggested that freight expenses would equal five percent of the wholesale price, the trial court erred in including the five percent handling charge as part of the wholesale value of the parts in determining damages for conversion of those parts repurchased under the dealership agreement. National Bank v. International Harvester Co., 421 N.W.2d 799, 1988 N.D. LEXIS 38 (N.D. 1988).

Diligence in Commencing Action.

An unexplained delay of eleven months in commencing an action is not a prosecution with reasonable diligence, and the highest market value is not recoverable. First Nat'l Bank v. Minneapolis & N. Elevator Co., 8 N.D. 430, 79 N.W. 874, 1899 N.D. LEXIS 29 (N.D. 1899).

The question of reasonable diligence in commencing an action where the facts as to diligence are not in dispute is one of law. First Nat'l Bank v. Red River Valley Nat'l Bank, 9 N.D. 319, 83 N.W. 221, 1900 N.D. LEXIS 235 (N.D. 1900).

Where the time elapsing between the date of conversion and the time of making the demand and bringing the action was approximately five months, it could not be said that the plaintiff was not diligent in prosecuting her action. Auth v. Kuroki Elevator Co., 40 N.D. 533, 169 N.W. 80, 1918 N.D. LEXIS 99 (N.D. 1918).

Executory Contract for Sale of Land.

In action for conversion of executory contract for sale of land, the measure of damages is the amount which will compensate the party injured for all detriment proximately caused thereby. McKindley v. Citizens State Bank, 36 N.D. 451, 161 N.W. 601, 1917 N.D. LEXIS 163 (N.D. 1917).

Exemplary Damages.

Exemplary damages may be awarded for conversion when the conduct of the wrongdoer has been oppressive, malicious, or fraudulent. Lamoreaux v. Randall, 53 N.D. 697, 208 N.W. 104, 1926 N.D. LEXIS 28 (N.D. 1926).

Grain.

Refusal of elevator to deliver wheat to the plaintiff upon her proper demand therefor was prejudicial and wrongful, and operated as a conversion of the wheat, and would therefore entitle the plaintiff to recover the value of the grain on the date of such demand and refusal with interest. Towne v. St. Anthony & Dakota Elevator Co., 8 N.D. 200, 77 N.W. 608, 1898 N.D. LEXIS 38 (N.D. 1898).

In an action for conversion of grain, the plaintiff must show the value of the grain as of the date of conversion. Citizens Nat'l Bank v. Osborne-McMillan Elevator Co., 21 N.D. 335, 131 N.W. 266, 1911 N.D. LEXIS 115 (N.D. 1911).

In an action to recover value of grain raised by plaintiff under a cropper’s contract, the measure of damages was the highest market value of the grain between the date of the conversion and the verdict. Collard v. Fried, 41 N.D. 242, 170 N.W. 525, 1918 N.D. LEXIS 149 (N.D. 1918); Littler v. Halla, 46 N.D. 180, 180 N.W. 717, 1920 N.D. LEXIS 69 (N.D. 1920); Fargo Loan Agency v. Larson, 53 N.D. 621, 207 N.W. 1003, 1926 N.D. LEXIS 23 (N.D. 1926).

In an action to recover the value of grain alleged to have been converted by defendant, and upon which the plaintiff had a chattel mortgage, judgment was properly based upon the market value established; but the allowance of costs and expenses of the foreclosure sale was erroneous where mortgagee at no time had possession of the grain or the storage tickets representing it. Sand v. St. Anthony & D. Elevator Co., 49 N.D. 502, 191 N.W. 955, 1922 N.D. LEXIS 82 (N.D. 1922).

In an action for damages on account of the conversion of grain covered by a chattel mortgage owned by plaintiff, where defendant denied lien, the conversion dated from the time of the purchase of the grain contrary to the terms of the agreement, and it was sufficient to prove the value of the grain at that time as the measure of damages was that value to the extent of plaintiff’s lien with interest from such date. Rolette State Bank v. Minnekota Elevator Co., 50 N.D. 141, 195 N.W. 6, 1923 N.D. LEXIS 82 (N.D. 1923).

The owner of grain stored in a public warehouse may recover the value of the grain at the time and place of conversion less storage charges, plus freight charges from local market to terminal market. Huether v. McCaull-Dinsmore Co., 52 N.D. 721, 204 N.W. 614, 1925 N.D. LEXIS 137 (N.D. 1925), overruled in part, Sollin v. Wangler, 2001 ND 96, 627 N.W.2d 159, 2001 N.D. LEXIS 104 (N.D. 2001).

Where a bank prosecuted with reasonable diligence its action for conversion of stored grain, it was entitled to recover the highest market price between the time of the conversion and the verdict. First State Bank v. Osborne-McMillan Elevator Co., 53 N.D. 551, 207 N.W. 37, 1926 N.D. LEXIS 4 (N.D. 1926).

Conversion by a public warehouseman selling stored grain without substitution takes place as of the date of shipment and sale. State ex rel. Hermann v. Farmers' Elevator Co., 59 N.D. 679, 231 N.W. 725, 1930 N.D. LEXIS 185 (N.D. 1930).

A conversion of wheat occurs when the wheat is taken and sold by a third party. Nathan v. Sax Motor Co., 64 N.D. 773, 256 N.W. 228, 1934 N.D. LEXIS 266 (N.D. 1934).

Refusal to deliver grain stored in an elevator on the ground that the grain had been foreclosed on and sold for storage constituted conversion. Kvame v. Farmers Coop. Elevator Co., 66 N.D. 54, 262 N.W. 242, 1935 N.D. LEXIS 171 (N.D. 1935).

In action for conversion of wheat stolen from plaintiff and sold and delivered by the thieves to defendant elevator company, whose manager purchased the grain without knowing that it was stolen, damages were recoverable for value of the wheat at the date of sale by the thieves to the elevator company. Hovland v. Farmers Union Elevator Co., 67 N.D. 71, 269 N.W. 842, 1936 N.D. LEXIS 153 (N.D. 1936).

The district court abused its discretion in excluding the defendant’s evidence relating to the commingling of corn delivered to its elevator as this evidence was relevant to the issue of damages, in a conversion action by the holder of a security interest. Dakota Bank & Trust Co. v. Brakke, 404 N.W.2d 438, 1987 N.D. LEXIS 297 (N.D. 1987).

Where a land purchaser denied access to the owner of grain bins on the purchaser’s land, both the monetary value of grain bins and possession of the bins were not authorized under N.D.C.C. § 32-03-23, which provided alternative bases for valuing converted property; the owner of the grain bins had to elect a remedy and once possession was elected, the value of the returned property had to be applied in mitigation of damages. Buri v. Ramsey, 2005 ND 65, 693 N.W.2d 619, 2005 N.D. LEXIS 71 (N.D. 2005).

Illegal Levy.

The measure of damages for an illegal levy is the value of the property at the time, and fair compensation for the time and money expended in its pursuit. Keith v. Haggart, 33 N.W. 465, 4 Dakota 438, 1887 Dakota LEXIS 13 (Dakota 1887).

Manufacturer who had made a wrongful levy and sale of dealer’s inventory was answerable in damages for the value of the property as determined by any one of the three methods of this section. John Deere Co. v. Nygard Equip., 225 N.W.2d 80, 1974 N.D. LEXIS 152 (N.D. 1974).

Interest on Damage Award Mandatory.

District court erred by instructing the jury it could elect not to include interest in a credit corporation’s conversion award because, the corporation elected to receive damages under N.D.C.C. § 32-03-23(1) and should have been awarded interest in addition to the value of the tractor at the time of the conversion as the award of interest was mandatory. Case Credit Corp. v. Oppegard's, Inc., 2005 ND 141, 701 N.W.2d 891, 2005 N.D. LEXIS 174 (N.D. 2005).

Lien or Other Special Interest.

Where a second mortgagee sued sheriff to recover for conversion of mortgaged chattels, the first mortgagee having recovered what was due him on account of the conversion, the recovery of the second mortgagee was limited to the difference between the value of the chattels and the prior recovery where value was less than amount of the two mortgages. Straw v. Jenks, 43 N.W. 941, 6 Dakota 414, 1889 Dakota LEXIS 36 (Dakota 1889).

Where a party who has a lien on or other special interest in property wrongfully converts it, he is liable for the value of the property, but nevertheless, upon principles of equity and to avoid circuity of action, is entitled to recoup the value of the special property and immediately mitigate the damage by limiting the plaintiff’s recovery to an amount which will compensate him for the actual loss resulting from the conversion. Lovejoy v. Merchants' State Bank, 5 N.D. 623, 67 N.W. 956, 1896 N.D. LEXIS 56 (N.D. 1896).

Money Expended in Pursuit.

In a case in which the landowner converted the tenant’s property as it exercised dominion and control over the property, the district court did not err in awarding the tenant $17,000 in damages to compensate it for hiring an investigative service to assist in recovering its wrongfully detained property. Skaw ND Precast, LLC v. Oil Capital Ready Mix, LLC, 2019 ND 296, 936 N.W.2d 65, 2019 N.D. LEXIS 287 (N.D. 2019).

Sale of Corporate Stock.

The wrongful sale of corporate stock in which another had an interest rendered the seller liable for the conversion of that interest. Leach v. Kelsch, 106 N.W.2d 358, 1960 N.D. LEXIS 93 (N.D. 1960).

Special Damages.

Special damages upon conversion of property are allowed only when properly incurred in pursuit of the property. Aronson v. Oppegard, 16 N.D. 595, 114 N.W. 377, 1907 N.D. LEXIS 82 (N.D. 1907).

Where a party places a fence on the property of another who then tears it down and refuses to return the material, an action for conversion may not properly include the cost of the labor of building the fence. Frank v. Schaff, 123 N.W.2d 827, 1963 N.D. LEXIS 114 (N.D. 1963).

Removal jurisdiction was lacking and remand under 28 U.S.C.S. § 1447(c) was appropriate because defendant satellite television provider failed to present sufficient evidence to show that a fact finder could legally conclude that the damages in plaintiff consumer’s action were greater than the $75,000 amount-in-controversy requirement necessary to support diversity jurisdiction under 28 U.S.C.S. § 1332 as the maximum recoverable damages under North Dakota law for the consumer’s claims of conversion and consumer fraud would be in the range of $1,000 plus reasonable costs and attorney’s fees under N.D.C.C. § 32-03-23 and N.D.C.C. § 51-15-09. Laducer v. Dish Network Serv., L.L.C., 691 F. Supp. 2d 1042, 2010 U.S. Dist. LEXIS 27560 (D.N.D. 2010).

Statutory Rule.

The rule of damages for conversion of personal property is the highest market value thereof as prescribed by the statute. Thompson v. Schaetzel, 42 N.W. 765, 6 Dakota 284, 1889 Dakota LEXIS 18 (Dakota 1889); Pickert v. Rugg, 1 N.D. 230, 46 N.W. 446, 1890 N.D. LEXIS 28 (N.D. 1890).

Stock of Goods.

The measure of damages for the conversion of a stock of goods is the amount for which the stock could be sold in bulk or in convenient lots by a willing seller to a willing buyer. Mevorah v. Goodman, 60 N.W.2d 581, 1953 N.D. LEXIS 103 (N.D. 1953).

The appropriate measure of damages for conversion of a stock of goods is the wholesale price plus freight costs. National Bank v. International Harvester Co., 421 N.W.2d 799, 1988 N.D. LEXIS 38 (N.D. 1988).

Time Expended in Pursuit.

The clause “time spent in pursuit of the property” is common to the Dakota and California enactments and derives from the Field Civil Code. Harwood State Bank v. Charon, 466 N.W.2d 601, 1991 N.D. LEXIS 25 (N.D. 1991).

Verdict.

The word “verdict” in the statute providing that the measure of damages for conversion is the highest market value of the property at any time between the conversion and the verdict does not mean merely the decision of the jury, but also includes findings of a judge trying a case without a jury. KVAME v. FARMERS COOP. ELEVATOR CO., 68 N.D. 439, 281 N.W. 52, 1938 N.D. LEXIS 131 (N.D. 1938).

Collateral References.

Trover and Conversion 41-62.

18 Am. Jur. 2d, Conversion, §§ 116 et seq.

89 C.J.S. Trover and Conversion, §§ 115-144.

Market value: measure of damages for conversion or loss of, or damage to, personal property not having a market value, 12 A.L.R.2d 902.

Measure of damages for refusal of corporation or its agent to register or effectuate transfer of stock, 22 A.L.R.2d 12.

Conditional seller’s conversion of repossessed property, buyer’s damages for, 49 A.L.R.2d 15.

Punitive or exemplary damages for conversion of personalty by one other than chattel mortgagee or conditional seller, 54 A.L.R.2d 1361.

Timber, 69 A.L.R.2d 1335.

Commercial paper, measure of damages for conversion or loss of, 85 A.L.R.2d 1349.

Earth, sand, or gravel, measure of damages for wrongful removal, 1 A.L.R.3d 801.

Corporate stock or certificate, measure of damages for conversion of, 31 A.L.R.3d 1286.

Wearing apparel: valuation of wearing apparel or household goods kept by owner for personal use in action for loss, conversion, or injury to, such property, 34 A.L.R.3d 816.

Measure of damages for destruction of or injury to fruit, nut, or other productive trees, 90 A.L.R.3d 800.

Measure of damages for injury to or destruction of shade or ornamental tree or shrub, 95 A.L.R.3d 508.

Recognition of action for damages for wrongful foreclosure — Types of actions, 82 A.L.R.6th 43.

Hold Over Not Willful.

Evidence supported the district court's finding that a lessee did not willfully hold over because the correspondence exchanged between the lessor and the lessee created confusion as to what conditions the lessee was required to fulfil in exchange for a one-month extension; the lessee tendered two checks, believing it paid two months' rent, and the lessor applied the checks to the rent. Cheetah Props. 1, LLC v. Panther Pressure Testers, Inc., 2016 ND 102, 879 N.W.2d 423, 2016 N.D. LEXIS 98 (N.D. 2016).

Willful Holdover.

Tenant willfully holds over if the holding over is done so intentionally and not inadvertently. Cheetah Props. 1, LLC v. Panther Pressure Testers, Inc., 2016 ND 102, 879 N.W.2d 423, 2016 N.D. LEXIS 98 (N.D. 2016).

Ejectment.

In a partnership dispute, a reviewing court did not have to address a trial court’s interpretation of agricultural land in N.D.C.C. § 47-16-02 because, even assuming there was a possessory interest in a bin site, there was evidence to support the finding that a partner was not ejected from the bin site. The testimony showed that a truck was parked across a road to prevent the removal of equipment, but not to prevent the use of the bins. Knudson v. Kyllo, 2012 ND 155, 819 N.W.2d 511, 2012 N.D. LEXIS 155 (N.D. 2012).

Forcible Entry.

To recover treble damages for a forcible ejectment from real property, the entry must have been forcible, but it is sufficient if present and threatened, and is justly to be feared, and it is not necessary that the force shall be actually applied. Wegner v. Lubenow, 12 N.D. 95, 95 N.W. 442, 1903 N.D. LEXIS 16 (N.D. 1903).

To authorize a recovery of treble damages under N.D.C.C. § 32-03-29 for a forcible ejectment from real property, it was necessary that the entry be forcible, but it was not necessary that the force be actually applied; it was enough if it was present and threatened, and was justly feared. Livinggood v. Balsdon, 2006 ND 11, 709 N.W.2d 723, 2006 N.D. LEXIS 17 (N.D. 2006).

Trial court did not err in concluding that a landlord forcibly ejected a tenant through overt acts where the landlord had twice driven in front of the tenant’s tractor, told him his farm lease was invalid, and threatened to call law enforcement; on both occasions, the tenant or his son stopped working and left the property. The tenant was properly awarded treble damages. Livinggood v. Balsdon, 2006 ND 215, 722 N.W.2d 716, 2006 N.D. LEXIS 217 (N.D. 2006).

Occupancy of House by Employee.

The rule that the occupancy of a house by an employee is incidental to the operation of a farm and ceases with the service on the farm is not abrogated by this section. Davis v. Long, 45 N.D. 581, 178 N.W. 936, 1920 N.D. LEXIS 164 (N.D. 1920).

Collateral References.

Ejectment 132; Forcible Entry and Detainer 30; Landlord and Tenant 132(3), 180(4, 5), 278, 292, 318(3).

25 Am. Jur. 2d, Ejectment, §§ 50-54; 49 Am. Jur. 2d, Landlord and Tenant, §§ 444-446.

28A C.J.S. Ejectment, § 232; 36A C.J.S. Forcible Entry and Detainer, §§ 75-77; 52 C.J.S. Landlord and Tenant, §§ 723-728; 52A C.J.S. Landlord and Tenant, §§ 976-981; 52B C.J.S. Landlord and Tenant, §§ 1328, 1398.

Remedy of tenant against stranger wrongfully interfering with his possession, 12 A.L.R.2d 1192, 1210.

Physical injury occasioned by wrongful eviction, recovery by tenant of damages for, 17 A.L.R.2d 936.

Possession: measure of damages for lessor’s breach of covenant to put lessee into possession, 88 A.L.R.2d 1024, 1032.

Law Reviews.

North Dakota Supreme Court Review (Livinggood v. Balsdon), 83 N.D. L. Rev. 1085 (2007).

Jury Instructions.

District court erred in excluding from the jury instructions that portion of the statute at issue which would have informed the jury that treble damages would be awarded except if a neighbor’s trespass was committed under the belief the land belonged to him because the exclusion required the jury to speculate why the factual finding was required and it could not be concluded that insuring the jury’s ignorance did not mislead or confuse the jury. Haider v. Moen, 2018 ND 174, 914 N.W.2d 520, 2018 N.D. LEXIS 164 (N.D. 2018).

Application of Statute.

The section does not apply to property which has no market value. Patterson v. Plummer, 10 N.D. 95, 86 N.W. 111 (1901), distinguished, McKindley v. Citizens State Bank, 36 N.D. 451, 161 N.W. 601 (1917) and Elliott Sch. Dist. v. Gorder, 55 N.D. 823, 215 N.W. 281, 1927 N.D. LEXIS 162 (N.D. 1927).

Breach of Warranty.

The statute is not applicable to a case where delivery is made and damages result from a breach of warranty of fitness. Needham v. H. S. Halverson & Co., 22 N.D. 594, 135 N.W. 203, 1912 N.D. LEXIS 59 (N.D. 1912).

Common-Law Rule.

The statute embodies the common-law rule of full compensation without punishment. Pickert v. Rugg, 1 N.D. 230, 46 N.W. 446, 1890 N.D. LEXIS 28 (N.D. 1890).

Failure to Deliver Potatoes.

Where defendant in writing agreed to sell plaintiff a carload of potatoes at one dollar and ten cents a bushel f.o.b. Winnipeg, guaranteeing safe delivery at Grand Forks, the measure of damages for defendant’s failure to deliver was the value of the potatoes at Grand Forks over the amount which would have been due if the defendant had fulfilled the contract. O. J. Barnes Co. v. Sheggerud, 43 N.D. 279, 173 N.W. 950, 1919 N.D. LEXIS 13 (N.D. 1919).

Purchaser’s Measure of Damages.

Purchaser of land induced through fraud and deceit is limited to the difference between value with which he parted and the actual value of the land as his measure of damages. Nupen v. Pearce, 235 F. 497, 1916 U.S. App. LEXIS 2203 (8th Cir. N.D. 1916).

Refusal to Deliver Repairs.

A counterclaim for damages for refusal to deliver certain repairs for machinery ordered by the defendant from the plaintiff, where the order was accepted or agreed to be filled, did not state facts sufficient to entitle the defendant to substantial damages. Scully Steel & Iron Co. v. Hann, 18 N.D. 528, 123 N.W. 275, 1909 N.D. LEXIS 53 (N.D. 1909).

Collateral References.

Measure of damages for conversion or loss of, or damage to, personal property having no market value, 12 A.L.R.2d 902.

Necessity that buyer, relying on market value as measure of damages for seller’s breach of sale contract, show that goods in question were available for market at price shown, 20 A.L.R.2d 819.

Application of Statute.

This section does not apply to an executory contract for the sale of land. McKindley v. Citizens State Bank, 36 N.D. 451, 161 N.W. 601, 1917 N.D. LEXIS 163 (N.D. 1917).

Chose in Action.

A chose in action is worth what appears to be due upon it and, unless the presumption is rebutted by legal evidence, it is conclusive. Anderson v. First Nat'l Bank, 6 N.D. 497, 72 N.W. 916, 1897 N.D. LEXIS 28 (N.D. 1897), aff'd, 172 U.S. 573, 19 S. Ct. 284, 43 L. Ed. 558, 1899 U.S. LEXIS 1397 (U.S. 1899).

Federal Bonds.

Federal bonds are presumed to be worth par until the contrary is shown. Dakota Nat'l Bank v. Brodie, 46 N.D. 247, 176 N.W. 738, 1920 N.D. LEXIS 1 (N.D. 1920).

Note and Mortgage.

The legal presumption is that note and mortgage were worth the amount of principal and interest indicated on their face at the time of conversion, and that amount with interest to the trial is prima facie the measure of damages. Holt v. Van Eps, 46 N.W. 689, 1 Dakota 206, 1875 Dakota LEXIS 13 (Dakota 1875).

Stock Certificate.

To the extent that this section applies to a certificate of stock in a national bank, the presumptive value of the stock is its par or nominal value. Patterson v. Plummer, 10 N.D. 95, 86 N.W. 111 (1901), distinguished, McKindley v. Citizens State Bank, 36 N.D. 451, 161 N.W. 601 (1917) and Elliott Sch. Dist. v. Gorder, 55 N.D. 823, 215 N.W. 281, 1927 N.D. LEXIS 162 (N.D. 1927).

Anticipated Profits.

Where a plaintiff offers evidence estimating anticipated profits with reasonable certainty, they may be awarded. Leingang v. Mandan Weed Bd., 468 N.W.2d 397, 1991 N.D. LEXIS 64 (N.D. 1991).

Benefit of Bargain.

The law incorporates the notion that contract damages should give the nonbreaching party the benefit of the bargain by awarding a sum of money that will put that person in as good a position as if the contract had been performed. Leingang v. Mandan Weed Bd., 468 N.W.2d 397, 1991 N.D. LEXIS 64 (N.D. 1991).

Breach of Sales Contract.

Where, in an action for breach of a lease-purchase contract for oil well equipment, the court allowed the seller to retain the sums already paid by the buyer, awarded damages for reasonable value of use based upon the parties’ monthly payment amount, and allowed the seller to keep the equipment without accounting for the proceeds, its measure of damages may arguably have been appropriate if the contract had been a true lease, but was wholly inappropriate for a breach of a sales contract. Lindberg v. Williston Indus. Supply Corp., 411 N.W.2d 368, 1987 N.D. LEXIS 382 (N.D. 1987).

Buyer’s Default.

A seller cannot, upon the buyer’s default, retake the property without accounting for the proceeds and also recover the purchase price from the defaulting buyer. This would clearly constitute a double recovery. Lindberg v. Williston Indus. Supply Corp., 411 N.W.2d 368, 1987 N.D. LEXIS 382 (N.D. 1987).

Construction Contract.

Trial court’s award of damages to excavation company based on load count was not clearly erroneous where developer failed to perform an initial cross-sectioning of area to be excavated as required by the contract, thereby preventing a more accurate calculation. Wachter v. Gratech Co., 2000 ND 62, 608 N.W.2d 279, 2000 N.D. LEXIS 65 (N.D. 2000).

Contract for Service.

Where the contract is for service and the breach prevents the performance of that service, the value of the contract consists of two items: (1) The party’s reasonable expenditures toward performance, including costs paid, material wasted, and time and services spent on the contract, and (2) the anticipated profits. Leingang v. Mandan Weed Bd., 468 N.W.2d 397, 1991 N.D. LEXIS 64 (N.D. 1991).

Fraudulent Misrepresentations.

In an action to recover damages for false and fraudulent representations, the measure of the plaintiff’s recovery, in absence of a claim for special or exemplary damages, is the difference in value between what was received or parted with, as the case may be, and what would have been received or parted with had the representations been true. Beare v. Wright, 14 N.D. 26, 103 N.W. 632, 1905 N.D. LEXIS 36 (N.D. 1905).

Limit on Recovery.

For a breach of contract, the injured party is entitled to compensation for the loss suffered, but can recover no more than would have been gained by full performance. Leingang v. Mandan Weed Bd., 468 N.W.2d 397, 1991 N.D. LEXIS 64 (N.D. 1991).

Lost Profits.

A party is entitled to recover for the detriment caused by the defendant’s breach, including lost profits if they are reasonable and not speculative. Leingang v. Mandan Weed Bd., 468 N.W.2d 397, 1991 N.D. LEXIS 64 (N.D. 1991).

Modified Net Profit Approach.

The method used by the trial court to derive net profits (a “modified net profit” approach) was improper, because it did not restrict the expenses that were deductible from the contract price to those which would have been incurred but for the breach of the contract, i.e., those expenses plaintiff did not have to pay because the defendant kept him from doing the work. Leingang v. Mandan Weed Bd., 468 N.W.2d 397, 1991 N.D. LEXIS 64 (N.D. 1991).

Repair.

In an action by plaintiff seed processor against defendants, a contractor, an equipment supplier, and a performance bond surety, the surety and the contractor unsuccessfully argued that the special masters’ damage determination with regard to repair costs provided the processor with a more expensive and well-appointed facility than it contracted to receive; the costs prepared by the processor’s experts were an objective and reasonable statement of costs to remedy the deficiencies in the plant and attain completed performance at the guaranteed levels. AgGrow Oils, L.L.C. v. Nat'l Union Fire Ins. Co., 276 F. Supp. 2d 999, 2003 U.S. Dist. LEXIS 12076 (D.N.D. 2003), aff'd, 420 F.3d 751, 2005 U.S. App. LEXIS 18015 (8th Cir. N.D. 2005).

Unascertainable Damages.

The trial court did not err in awarding greater damages than would have been realized by full performance of the contract, where without a breach, the broker would have been entitled not only to its net sales commissions, but to other damages, extremely difficult or impracticable to ascertain, yet flowing from the breach, including loss of management fees, sales referrals, business contact with tenants, and goodwill. Coldwell Banker-First Realty v. Meide & Son, 422 N.W.2d 375, 1988 N.D. LEXIS 78 (N.D. 1988).

Collateral References.

Amount of appropriation as limitation on damages for breach of contract recoverable by one contracting with government agency, 40 A.L.R.4th 998.

Equipment leasing expense as element of construction contractor’s damages, 52 A.L.R.4th 712.

Recoverability of compensatory damages for mental anguish or emotional distress for breach of contract to lend money, 52 A.L.R.4th 826.

Breach of Contract.

A party is entitled to nominal damages for the breach of a contract though there is failure to prove actual damages. Raymond v. Edelbrock, 15 N.D. 231, 107 N.W. 194, 1906 N.D. LEXIS 34 (N.D. 1906).

Breach of Official Bond.

A complaint which alleges a breach of an official bond is good against demurrer, even though there is no express allegation of damages. Bowman County v. McIntyre, 52 N.D. 225, 202 N.W. 651, 1925 N.D. LEXIS 24 (N.D. 1925).

Instructions.

Refusal to give defendant’s requested instruction would have required jury to award nominal damages if it found that plaintiff carnally knew wife of defendant was not error since statute allows such damages but does not require that they be awarded. Wrangham v. Tebelius, 231 N.W.2d 753, 1975 N.D. LEXIS 178 (N.D. 1975).

No Damage Suffered.

The trial court’s finding that no damage ensued from the defendants’ “acts of deceit” or “attempts to defraud” required that the nominal damage award for those acts be reversed. Olson v. Fraase, 421 N.W.2d 820, 1988 N.D. LEXIS 89 (N.D. 1988).

Nominal Damages Reversed.

The trial court’s award of nominal damages of $2500 each for four separate acts which was then trebled, was reversed, for at least two reasons. First, the damages were not nominal; nominal damages are limited to one dollar. More significantly, however, no nominal damage award was allowable, where three of the four acts of the defendants for which nominal damages were awarded, were based upon the trial court’s findings that these acts were either an attempt to defraud or were acts of deceit. Olson v. Fraase, 421 N.W.2d 820, 1988 N.D. LEXIS 89 (N.D. 1988).

Collateral References.

Damages 8-14.

22 Am. Jur. 2d, Damages, §§ 8-23.

25 C.J.S. Damages, §§ 12-20.

Trespass: nominal damages as recoverable in action of trespass by tenant against stranger wrongfully interfering with his possession, 12 A.L.R.2d 1192, 1210.

Privacy, invasion of right of, 14 A.L.R.2d 750, 57 A.L.R.3d 16.

Corporation: right to nominal damages only for refusal of corporation or its agent to register or effectuate transfer of stock, 22 A.L.R.2d 12.

Breach of contract, nominal damages for procuring, 26 A.L.R.2d 1227.

Tenant’s failure to surrender possession of rented premises, nominal damages in action for, 32 A.L.R.2d 582, 611.

Pollution of stream, recovery of nominal damages only for, 49 A.L.R.2d 253, 267.

Employer’s right to damages for breach of employment contract by employee’s terminating employment, 61 A.L.R.2d 1008, 1010.

Geophysical or seismograph exploration or survey, right to nominal damages for unauthorized, 67 A.L.R.2d 444, 457.

Wrongful death action, recovery of nominal damages in, 69 A.L.R.2d 628.

Vendor’s delay in conveying real property, nominal damages in action by vendee for, 74 A.L.R.2d 585.

Commercial paper, nominal damages for conversion or loss of, 85 A.L.R.2d 1349.

Lessor’s breach of covenant to put lessee into possession, nominal damages for, 88 A.L.R.2d 1024, 1032.

Liability for interference with invalid or unenforceable contract, 96 A.L.R.3d 1294.

Sufficiency of showing of actual damages to support award of punitive damages — modern cases, 40 A.L.R.4th 11.

Punitive damages for interference with contract or business relationship, 44 A.L.R.4th 1078.

Measure and elements of damages recoverable for attorney’s negligence in preparing or conducting litigation — Twentieth Century cases, 90 A.L.R.4th 1033.

Evidence.

In an action to collect unpaid overtime wages from a non-profit organization, unsupported conclusory allegations, inadmissible hearsay and innuendo offered by the former employee were insufficient to establish personal liability of the corporation’s officers. Strom-Sell v. Council for Concerned Citizens, Inc., 1999 ND 132, 597 N.W.2d 414, 1999 N.D. LEXIS 152 (N.D. 1999).

Applicability.

Trial court erred in granting judgment on an injured party’s dram shop claim. The injured party, who claimed that she was pushed to the ground by a bar patron, testified she saw the bar patron drinking beer at the bar earlier that night and noticed signs that would suggest that the bar patron was obviously intoxicated. Forsman v. Blues, Brews and Bar-B-Ques, Inc., 2012 ND 184, 820 N.W.2d 748, 2012 N.D. LEXIS 186 (N.D. 2012).

“Fault.”

This section indicates that the focus for determining tort liability has been shifted from traditional, doctrinal labels to the singular, inclusive concept of “fault.” Erickson v. Schwan, 453 N.W.2d 765, 1990 N.D. LEXIS 70 (N.D. 1990).

Intentional Acts.

There are many types of fault which the court must consider when comparing the fault of the parties. The court is not limited to simply comparing the negligence of both sides, but must consider all fault, including what would have traditionally been considered intentional torts or intentional conduct. Champagne v. United States, 836 F. Supp. 684, 1992 U.S. Dist. LEXIS 21977 (D.N.D. 1992), aff'd, 40 F.3d 946, 1994 U.S. App. LEXIS 32952 (8th Cir. N.D. 1994).

Prospective Application.

This chapter could not be retroactively applied to require the use of a combined fault assessment form in a case involving both negligence and strict liability claims which accrued before July 8, 1987. Butz v. Werner, 438 N.W.2d 509, 1989 N.D. LEXIS 61 (N.D. 1989).

Constitutionality.

The rational basis test was applicable to an equal protection challenge to this section. The elimination of joint and several liability under this section affects the amount of damages that an injured party may recover; however, that party is not denied access to the courts. Kavadas v. Lorenzen, 448 N.W.2d 219, 1989 N.D. LEXIS 214 (N.D. 1989).

The legislative classification in this section is rationally related to a legitimate legislative goal of the fixing responsibility for and paying of damages and, therefore, does not violate equal protection. Kavadas v. Lorenzen, 448 N.W.2d 219, 1989 N.D. LEXIS 214 (N.D. 1989).

This section bears a reasonable relation to the desired result of apportioning liability and damages among those persons responsible for another person’s injuries, is not arbitrary, unreasonable or discriminatory, and does not violate due process. Haff v. Hettich, 1999 ND 94, 593 N.W.2d 383, 1999 N.D. LEXIS 116 (N.D. 1999).

Consequential damages.

Evidence of a driver’s intoxication was not relevant under N.D. R. Evid. 402 where although the family members were allowed to recover pain, suffering, mental anguish, and emotional distress damages from their loved ones’ deaths, any damages due to the driver’s negligence preceding the deaths, including intoxication, were not compensable under N.D.C.C. §§ 32-21-02 or 32-03.2-02. Zander v. Morsette, 2021 ND 84, 959 N.W.2d 838, 2021 N.D. LEXIS 84 (N.D. 2021).

Acting “In Concert”.

University did not act in concert with 10K race sponsors who held race at university and thus was not jointly liable for any negligence attributable to the sponsors; there was no evidence that the university participated with the race sponsors in the planning and supervision of entrants running in the race and as a matter of law university hockey team player who became severely dehydrated while running in the race failed to show any common plan or design necessary for an “in concert” action. Reed v. University of North Dakota, 1999 ND 25, 589 N.W.2d 880, 1999 N.D. LEXIS 27 (N.D. 1999).

Plaintiff investors’ common law fraud claims failed because: (1) the conduct on which the fraud claim was based needed to be actionable fraud without the assistance of N.D.C.C. § 10-04-15; (2) N.D.C.C. § 32-03.2-02 did not create an independent basis of liability; (3) the investors presented no evidence that defendant attorney himself made any fraudulent statements and omissions, and (4) they failed to present any evidence to raise a genuine issue of material fact that there was a common plan to commit fraud or that the attorney knew that a seller of securities was making fraudulent statements and omitting material information in soliciting investors. Ward v. Bullis, 2008 ND 80, 748 N.W.2d 397, 2008 N.D. LEXIS 81 (N.D. 2008).

Applicability.

— In General.

In a breach of warranty action stemming from a construction contract, the district court properly refused to instruct on comparative fault; the modified comparative fault statute, N.D.C.C. § 32-03.2-02, did not apply where the cause of action arose out of a contract between the parties, and the damages sought were for the loss of the expected bargain only. Leno v. K & L Homes, Inc., 2011 ND 171, 803 N.W.2d 543, 2011 N.D. LEXIS 171 (N.D. 2011).

—Dram Shops.

The 1987 dram shop amendments to N.D.C.C. § 5-01-06.1 plainly granted persons injured by an obviously intoxicated person a dram shop claim for relief under the comparative fault guidelines against persons who knowingly sell alcoholic beverages to the intoxicated person while that person is obviously intoxicated; the amendments specifically incorporated the requirement of this section for allocation of fault among all persons “who contributed to the injury.” Stewart v. Ryan, 520 N.W.2d 39, 1994 N.D. LEXIS 169 (N.D. 1994).

Where dram shop claims were settled by patron allegedly injured in bar, if requested by any party, the court should provide separate interrogatories to the jury on defendant’s dram shop and common law fault, so that the jury would be free to assess separate percentages of fault for those claims. Zueger v. Carlson, 542 N.W.2d 92, 1996 N.D. LEXIS 21 (N.D. 1996).

Truck passengers riding with intoxicated minor driver were not liable under this section to passengers in another vehicle injured when truck struck that vehicle; truck passengers did not provide the driver with alcohol before or during the drive, did not encourage the driver to drink, and there was no evidence to show that the passengers knew the driver was intoxicated. Hurt v. Freeland, 1999 ND 12, 589 N.W.2d 551, 1999 N.D. LEXIS 4 (N.D. 1999).

Assumption of Risk.

This section includes not only negligence, but also assumption of risk within the definition of “fault” to be compared in an action for damages. Erickson v. Schwan, 453 N.W.2d 765, 1990 N.D. LEXIS 70 (N.D. 1990).

Collateral Estoppel.

Although the divorce court found a wife generally caused the husband's losses, the record did not reflect the divorce court assigned this exact fault. The wife's affirmative defense of comparative fault prevented collateral estoppel from establishing her liability for the husband's claims. Norberg v. Norberg, 2017 ND 14, 889 N.W.2d 889, 2017 N.D. LEXIS 29 (N.D. 2017).

Consequential Damages.

In a case decided under N.D.C.C. § 32-03.2-03 (now repealed), where a farmer delivered winter wheat to a grain elevator instead of the promised spring wheat, in awarding consequential damages, the trial court correctly compared the “fault” of the farmer and the elevator that caused those damages and apportioned them accordingly. Dakota Grain Co. v. Ehrmantrout, 502 N.W.2d 234, 1993 N.D. LEXIS 112 (N.D. 1993).

Contribution Among Tort-Feasors.

A tort-feasor who enters into a settlement with a claimant is not entitled to recover contribution from another tort-feasor whose liability for the injury or wrongful death is not extinguished by the settlement nor in respect to any amount paid in a settlement which is in excess of what was reasonable; therefore, because there was no evidence that the third party defendant’s liability was extinguished by the defendant’s settlement with the plaintiffs, the defendant was not entitled to maintain an action for contribution against the third party defendant. Pierce v. Shannon, 2000 ND 54, 607 N.W.2d 878, 2000 N.D. LEXIS 47 (N.D. 2000).

Because N.D.C.C. § 32-03.2-02 provided that a party was only liable for its own fault, an employer’s claim against a truck owner and driver for contribution was foreclosed; however, genuine issues of material fact existed concerning the employer’s crossclaim for indemnification. Campbell v. BNSF Ry. Co., 756 F. Supp. 2d 1109, 2010 U.S. Dist. LEXIS 138218 (D.N.D. 2010).

In an action brought by the surviving spouse of a deceased heavy construction equipment operator who was killed when a nine-wheel pneumatic rubber tire roller compactor he was operating rolled over, because the court denied summary judgment to the distributor and the seller on the spouse’s claims of strict products liability, failure to warn, and negligence, in accordance with N.D.C.C. § 32-03.2-02, the jury would be allowed to consider the “fault” of each party and assess whether the manner in which the decedent operated the compactor contributed to his injuries and damages would be diminished in proportion to the amount of contributing fault. Reiss v. Komatsu Am. Corp., 735 F. Supp. 2d 1125, 2010 U.S. Dist. LEXIS 85136 (D.N.D. 2010).

Phrase “legally entitled to collect” in N.D.C.C. § 26.1-40-15.3(1) was construed as defining the compensatory damages payable under underinsured coverage and contemplating an initial allocation for comparative fault under N.D.C.C. § 32-03.2-02, i.e., the scope of the damages underinsured coverage must pay was the compensatory damages attributable to the comparative fault of the owner or operator of the underinsured vehicle. Hiltner v. Owners Ins. Co., 2016 ND 45, 876 N.W.2d 460, 2016 N.D. LEXIS 45 (N.D. 2016).

Under the specific certified question, construing N.D.C.C. §§ 26.1-40-15.3(1) and 26.1-40-15.4(1)(b) together and in conjunction with comparative fault law, the federal district court should first reduce the past economic damages for the percentage of fault attributable to the underinsured insured, and other persons or parties, other than the operator or owner of the underinsured motor vehicle, and then deduct the no-fault benefits paid. Hiltner v. Owners Ins. Co., 2016 ND 45, 876 N.W.2d 460, 2016 N.D. LEXIS 45 (N.D. 2016).

Inherent Risks.

N.D.C.C. § 53-09-10, which bars recovery by a skier when an injury is caused by an inherent risk in skiing, does not conflict with the modified comparative fault statute found in this section. Bouchard v. Johnson, 555 N.W.2d 81, 1996 N.D. LEXIS 229 (N.D. 1996).

Intentional Acts.

There are many types of fault which the court must consider when comparing the fault of the parties. The court is not limited to simply comparing the negligence of both sides, but must consider all fault, including what would have traditionally been considered intentional torts or intentional conduct. Champagne v. United States, 836 F. Supp. 684, 1992 U.S. Dist. LEXIS 21977 (D.N.D. 1992), aff'd, 40 F.3d 946, 1994 U.S. App. LEXIS 32952 (8th Cir. N.D. 1994).

Even though an injury to the victim’s eye would not have occurred but for the shooter’s intentional act of pointing and firing an air gun at the victim, that act did not bar a jury from considering any alleged fault of other parties who contributed to the injury, specifically the manufacturer of the air gun. Symington v. Daisy Mfg. Co., 360 F. Supp. 2d 1027, 2005 U.S. Dist. LEXIS 4146 (D.N.D. 2005).

Because a jury’s findings that insureds acted in concert, as defined by N.D.C.C. § 32-03.2-02, when they wrongfully interfered with a business was res judicata as to whether their tortious conduct was intentional, their insurer had no duty to indemnify them. Coverage was precluded as a matter of law by intentional acts exclusions and by the public policy stated in N.D.C.C. §§ 9-08-02, 26.1-32-04; however, the jury’s findings did not relieve the insurer of the duty to defend, which was determined by the allegations in the underlying complaint. Tibert v. Nodak Mut. Ins. Co., 2012 ND 81, 816 N.W.2d 31, 2012 N.D. LEXIS 81 (N.D. 2012).

Joint and Several Liability.

Under this section, plaintiffs injured by two or more tortfeasors who do not act in concert in committing a tortious act or aid or encourage the act cannot recover under joint and several liability, while plaintiffs injured by two or more tortfeasors who act in concert in committing a tortious act or aid or encourage the act can recover under joint and several liability. Kavadas v. Lorenzen, 448 N.W.2d 219, 1989 N.D. LEXIS 214 (N.D. 1989).

Trial court did not err in awarding a plaintiff costs and disbursements from the defendants jointly and severally, even though the defendants were severally liable for plaintiff’s damages under this section. Kavadas v. Lorenzen, 448 N.W.2d 219, 1989 N.D. LEXIS 214 (N.D. 1989).

“Aid” for purposes of joint and several liability is not defined by N.D.C.C. § 32-03.2-02 and has not been defined by case law. Case Credit Corp. v. Oppegard's, Inc., 2005 ND 141, 701 N.W.2d 891, 2005 N.D. LEXIS 174 (N.D. 2005).

District court did not err in denying credit corporation’s motion for judgment as a matter of law that an implement dealer aided a farmer’s conversion and was therefore jointly liable for the corporation’s damages because the district judge found whether the dealer “aided” the farmer in converting the tractor was a question of fact to be decided by the fact finder and the jury specifically found the dealer did not aid the farmer, so the dealer was only severally liable for the corporation’s damages. Case Credit Corp. v. Oppegard's, Inc., 2005 ND 141, 701 N.W.2d 891, 2005 N.D. LEXIS 174 (N.D. 2005).

Jury Instructions.

Where defendant had full opportunity to present evidence to the jury about nonparty’s fault in suit for negligence in construction of home, the jury weighed the evidence and decided that the damage was due to defendant’s negligence, not nonparty’s, and thus decided the negligence of both; viewing the instructions as a whole, the instructions fairly and adequately advised the jury of the law, and the minor items argued by defendant did not necessitate reversal. Barnes v. Mitzel Builders, 526 N.W.2d 244, 1995 N.D. LEXIS 7 (N.D. 1995).

A trial court should give an ultimate-outcome instruction in a comparative fault case if it is properly requested and the court determines the instruction will not confuse or mislead the jury. Sollin v. Wangler, 2001 ND 96, 627 N.W.2d 159, 2001 N.D. LEXIS 104 (N.D. 2001).

The trial court’s failure to inform the jury, sua sponte, about the effect of its answers to comparative fault questions on its award of damages was not error of constitutional magnitude under N.D. Const. art. I, § 9, or fundamental error affecting substantial rights and requiring a new trial given that the plaintiff did not request an ultimate-outcome instruction before trial, did not object to the omission of the instruction before the jury deliberated, did not request the instruction when the jury submitted its question during deliberations, and at best, the issue of whether an ultimate-outcome instruction could be given in North Dakota was unsettled when the trial was held. Sollin v. Wangler, 2001 ND 96, 627 N.W.2d 159, 2001 N.D. LEXIS 104 (N.D. 2001).

District court did not err in failing to give a jury instruction defining “aid” as used N.D.C.C. § 32-03.2-02 because the word was commonly understood, the failure to give a definition was not prejudicial, and the district court’s decision not to define “aid” was not an abuse of its discretion. Case Credit Corp. v. Oppegard's, Inc., 2005 ND 141, 701 N.W.2d 891, 2005 N.D. LEXIS 174 (N.D. 2005).

District court did not confuse the jury by including the entire modified comparative fault statute in the instruction and not just the relevant parts because, although the instruction given could have been simplified by eliminating the extra statutory language, there was nothing to indicate the instruction was calculated to mislead the jury. Case Credit Corp. v. Oppegard's, Inc., 2005 ND 141, 701 N.W.2d 891, 2005 N.D. LEXIS 174 (N.D. 2005).

Trial court did not err by failing to give the independent contractor jury instruction, N.D. Pattern Jury Instructions Civ. C-55.25 as requested by the general contractor because the jury instructions, taken together as a whole, fairly advised the jury of the law on the essential issues in the case, including comparative fault. The general contractor had stipulated to try the case on the issue of comparative fault. Travelers Cas. Ins. Co. of Am. v. Williams Co. Constr., 2014 ND 160, 851 N.W.2d 164, 2014 N.D. LEXIS 170 (N.D. 2014).

Medical Expenses.

Because a father’s claim for past medical expenses derived from his son’s injuries, and the son was denied recovery under North Dakota’s modified comparative fault laws, the district court correctly dismissed the father’s claim for his son’s medical expenses. M.M. v. Fargo Public Sch. Dist. No. 1, 2012 ND 79, 815 N.W.2d 273, 2012 N.D. LEXIS 69 (N.D. 2012).

Parent is not entitled to recover medical expenses paid on behalf of an injured minor child whose comparative fault exceeds the fault of the tortfeasor. M.M. v. Fargo Public Sch. Dist. No. 1, 2012 ND 79, 815 N.W.2d 273, 2012 N.D. LEXIS 69 (N.D. 2012).

Medical Malpractice.

This section requires apportionment of damages based on the percentages of fault attributable to the original tortfeasor and medical care providers who negligently treated the original injury. Haff v. Hettich, 1999 ND 94, 593 N.W.2d 383, 1999 N.D. LEXIS 116 (N.D. 1999).

Multiple Defendants.

Under the comparative fault law in N.D.C.C. § 32-03.2-02, the driver’s alleged negligence did not necessarily negate the landowner’s duty to plaintiff under premises liability law. Saltsman v. Sharp, 2011 ND 172, 803 N.W.2d 553, 2011 N.D. LEXIS 172 (N.D. 2011).

Non-Sued Tort-Feasor.

A non-sued tort-feasor, who did not act in concert with, nor aid or encourage a sued tort-feasor, nor ratify or adopt that tort-feasor’s act, is not liable for contribution to the sued tort-feasor. Target Stores v. Automated Maintenance Servs., 492 N.W.2d 899, 1992 N.D. LEXIS 239 (N.D. 1992).

Purpose.

The legislature’s intent in enacting this section was to replace joint and several liability with several allocation of damages among those who commit torts in proportion to the fault of those who contributed to an injury. Hurt v. Freeland, 1999 ND 12, 589 N.W.2d 551, 1999 N.D. LEXIS 4 (N.D. 1999).

Question of Fact.

Where trial court found that plaintiff had violated this section, and had been driving his vehicle in a manner which would not enable him to stop within the “assured clear distance ahead”, there was a genuine issue of material fact as to whether plaintiff’s negligence was as great as the negligence of railroad, and court erred in granting summary judgment to railroad. Kiemele v. Soo Line R.R., 93 F.3d 472, 1996 U.S. App. LEXIS 20889 (8th Cir. N.D. 1996).

Settling with Some Defendants.

Where trial court found injury to be proximately caused by combination of overloaded cartridge and defectively designed gun in equal proportion, there was an irreconcilable inconsistency in the findings because judgment against nonsettling manufacturer was ordered for the total amount of plaintiff’s damages found by the court, and that manufacturer was entitled to have plaintiff’s total damages reduced by the portion of fault attributable to settling defendants. Endresen v. Scheels Hardware & Sports Shop, 1997 ND 38, 560 N.W.2d 225, 1997 N.D. LEXIS 39 (N.D. 1997).

In a wrongful death action the trial court did not err in refusing to reduce the jury’s damage award against the car driver by the amount of the plaintiffs’ settlement with the vicariously liable car owner. Nelson v. Johnson, 1999 ND 171, 599 N.W.2d 246, 1999 N.D. LEXIS 191 (N.D. 1999).

Suicide.

In an action against a hospital under the Federal Tort Claims Act (28 USCS 26, 71 et seq.) by personal representatives for the estate of a decedent who committed suicide, where plaintiffs established that the negligence of the hospital was a proximate cause of the decedent’s death, the decedent bore ultimate and primary responsibility for his own death, and his contributory negligence was attributed to those who brought suit on his behalf. Champagne v. United States, 836 F. Supp. 684, 1992 U.S. Dist. LEXIS 21977 (D.N.D. 1992), aff'd, 40 F.3d 946, 1994 U.S. App. LEXIS 32952 (8th Cir. N.D. 1994).

A suicide victim’s fault is considered under this section but if the medical provider, knowing the patient is suicidal and too mentally incapacitated to assume responsibility for his own well-being, undertakes a duty of care to the patient that takes in the patient’s duty of self-care, then the patient’s fault in the act of suicide is greatly reduced. If the patient’s act of suicide is a foreseeable result of the medical provider’s breach of duty to treat the patient, the patient’s act of suicide cannot be deemed a superseding cause of the patient’s death that breaks the chain of causation between the medical provider and the patient, which absolves the medical provider of liability. Champagne v. United States, 513 N.W.2d 75, 1994 N.D. LEXIS 62 (N.D. 1994).

The fault of a suicide victim is attributable to plaintiffs who sue for wrongful-death damages. Champagne v. United States, 513 N.W.2d 75, 1994 N.D. LEXIS 62 (N.D. 1994).

Constitutionality.

Former N.D.C.C. § 9-10-07 did not create classifications constituting invidious discrimination in violation of the equal protection or due process rights of the federal or state constitutions. Mauch v. Mfrs. Sales & Serv., 345 N.W.2d 338, 1984 N.D. LEXIS 245 (N.D. 1984).

Contribution Among Tort-Feasors.

In determining the right of a tort-feasor to contribution in a comparative negligence action under former N.D.C.C. § 9-10-07, the pro rata shares of the common liability was determined in proportion to the percentage of negligence attributable to each tort-feasor under this section. Bartels v. Williston, 276 N.W.2d 113, 1979 N.D. LEXIS 207 (N.D. 1979).

Contributory Negligence.

Former N.D.C.C. § 9-10-07 did not abolish the concept of contributory negligence, it only abolished the former result of contributory negligence that a plaintiff’s contributory negligence barred recovery of any damages. The bar to recovery was, in essence, shifted from one percent to fifty percent. State by Workmen's Compensation Bureau v. Clary, 389 N.W.2d 347, 1986 N.D. LEXIS 327 (N.D. 1986).

Costs and Disbursements.

Plaintiff who recovers damages in a negligence action is entitled to recover costs and disbursements in an amount undiminished by percent of negligence attributable to him; former N.D.C.C. § 9-10-07 did not provide for any diminution in costs and disbursements allowed to a recovering plaintiff. Keller v. Vermeer Mfg. Co., 360 N.W.2d 502, 1984 N.D. LEXIS 433 (N.D. 1984).

Dramshop Actions.

Comparative negligence law does not apply to actions brought under the Dramshop Act. Feuerherm v. Ertelt, 286 N.W.2d 509, 1979 N.D. LEXIS 328 (N.D. 1979).

Release Given One of Two or More Persons Jointly Liable.

In a comparative negligence action under former N.D.C.C. § 9-10-07, when the plaintiff in good faith has given one of two or more persons liable in tort for his injury a general release, the fact finder shall determine the percentage of negligence attributable to the released tort-feasor as well as the percentage attributable to the remaining tort-feasors, and the damages shall be reduced by an amount proportionate to the percentage of negligence allocated to the released tort-feasor. Bartels v. Williston, 276 N.W.2d 113, 1979 N.D. LEXIS 207 (N.D. 1979).

In an action for negligence arising under former N.D.C.C. § 9-10-07, a general release given in good faith to one of two or more persons liable in tort for the same injury, pursuant to N.D.C.C. ch. 32-28, discharges the tort-feasor to whom it is given from all liability for contribution to any other tort-feasor. Bartels v. Williston, 276 N.W.2d 113, 1979 N.D. LEXIS 207 (N.D. 1979).

Review on Appeal.

Court’s finding of the apportionment of the negligence will not be set aside on appeal unless such finding is clearly erroneous. Bauer v. Graner, 266 N.W.2d 88, 1978 N.D. LEXIS 247 (N.D. 1978).

Settling with Some Defendants.

By settling with some tortfeasors in a negligence action, a plaintiff expects to have his or her recovery reduced only by that portion of causal fault attributable to the settling defendants. The plaintiff does not impliedly agree, or expect as a natural consequence of entering into a settlement, that he or she will be forced to absorb portions of causal fault attributable to nonsettling tortfeasors who are either insolvent or statutorily immune from suit. Hoerr v. Northfield Foundry & Mach. Co., 376 N.W.2d 323, 1985 N.D. LEXIS 459 (N.D. 1985).

By settling with some tortfeasors in a negligence action, the plaintiff waives joint and several liability only between the settling and nonsettling defendants, and the nonsettling defendants may be held jointly and severally liable for the entire portion of causal fault reduced only by that portion of fault attributable to the settling defendants. Hoerr v. Northfield Foundry & Mach. Co., 376 N.W.2d 323, 1985 N.D. LEXIS 459 (N.D. 1985).

To redistribute a statutorily immune employer’s percentage of fault in a negligence action between all causal parties, where a settlement with some of those parties had already been made, so as to reduce plaintiff’s recovery is contrary to the joint and several liability provisions of this section. Hoerr v. Northfield Foundry & Mach. Co., 376 N.W.2d 323, 1985 N.D. LEXIS 459 (N.D. 1985).

Workers’ Compensation Act.

The comparative negligence statute has not impliedly amended N.D.C.C. § 65-01-09. State by Workmen's Compensation Bureau v. Clary, 389 N.W.2d 347, 1986 N.D. LEXIS 327 (N.D. 1986).

Where employee was injured in a work-related accident resulting from the negligence of his employer, who was 75 percent negligent, and a third party, who was 25 percent negligent, and the employee received workers’ compensation benefits for his injuries and filed an action against the third party in accordance with N.D.C.C. § 65-01-09, the trial court erred in reducing employee’s damage recovery against the third party by the percentage of negligence attributable to the employer, who was immune from suit because of the workers’ compensation exclusive remedy provision; such reduction of damage recovery was contrary to the express language of former N.D.C.C. § 9-10-07, which retains the doctrine of joint and several liability, permitting the employee to recover his damages in full from the third party. Layman v. Braunschweigische Maschinenbauanstalt, Inc., 343 N.W.2d 334, 1983 N.D. LEXIS 434 (N.D. 1983).

The Workers’ Compensation Act operates in North Dakota to foreclose an employer’s liability for contribution to a third-party tort-feasor. Hoerr v. Northfield Foundry & Mach. Co., 376 N.W.2d 323, 1985 N.D. LEXIS 459 (N.D. 1985).

Neither this section nor N.D.C.C. § 65-01-09 permits a reduction of the workers’ compensation bureau’s subrogation rights because the claimant is unable to recover his full damages from all tort-feasors. Kavadas v. North Dakota Workers Compensation Bureau, 466 N.W.2d 839, 1991 N.D. App. LEXIS 4 (N.D. Ct. App. 1991).

Collateral References.

Intentional provocation, contributory or comparative negligence, or assumption of risk as defense to action for injury by dog, 11 A.L.R.5th 127.

Applicability of comparative negligence principles to intentional torts, 18 A.L.R.5th 525.

Comparative negligence of driver as defense to enhanced injury, crashworthiness, or second collision claim, 69 A.L.R.5th 625.

Law Reviews.

Comparative Negligence — North Dakota, 51 N.D. L. Rev. 745 (1975).

The North Dakota Equity for Tortfeasors Struggle — Judicial Action vs. Legislative Over-Reaction, 56 N.D. L. Rev. 67 (1980).

Merging Comparative Fault with Strict Liability Actions in North Dakota: In Search of a New Day, 61 N.D. L. Rev. 7 (1985).

Negligence-Damages-Expert Testimony on Plaintiff Motorcyclist’s Nonuse of a Helmet is Admissible Evidence on Issue of Damages, 60 N.D. L. Rev. 751 (1984).

Negligence — The Unit Rule and North Dakota’s Comparative Negligence Statute, 64 N.D. L. Rev. 135 (1988).

Intoxicating Liquors — Persons Liable: North Dakota Extends Statutory Dram Shop Liability to Social Hosts, 71 N.D. L. Rev. 743 (1995).

Constitutional Law — Workers Compensation: Equal Protection Challenge to the Agriculture Exemption and Use of Rational Basis Scrutiny in, Haney v. North Dakota Workers Compensation Bureau, 518 N.W.2d 195 (N.D. 1994), 71 N.D. L. Rev. 781 (1995).

Summary of North Dakota Supreme Court Decisions on Torts — Negligence, 71 N.D. L. Rev. 892 (1995).

Contracts v. Torts: North Dakota’s Aftermarket Risk Contract & Aftermarket Risk Insurance, Products Liability, and the General Aviation Industry, 72 N.D. L. Rev. 663 (1996).

North Dakota Supreme Court Review, 78 N.D. L. Rev. 579 (2002).

Note: North Dakota’s Seat Belt Defense: It’s Time For North Dakota To Statutorily Adopt the Doctrine of Avoidable Consequences, 87 N.D. L. Rev. 139 (2011).

Note: Collision Of Negligence Theory: Does A “Blackout” Constitute An Unavoidable, Sudden Emergency In North Dakota?, 87 N. Dak. L. Rev. 233 (2011).

Applicability.

Although this section expressly applies only to claims accruing after July 8, 1987, it is indicative of legislative sentiment to allow these claims. Jacobs v. Anderson Bldg. Co., 430 N.W.2d 558, 1988 N.D. LEXIS 155 (N.D. 1988).

Establishing Federal Diversity Jurisdiction.

In a personal injury and property damages case arising from a train derailment, the court had diversity jurisdiction since the individuals’ alleged physical injuries and injuries in the form of noneconomic damages allowed by N.D.C.C. § 32-03.2-04 could result in a jury verdict awarding damages in excess of $75,000. Mehl v. Canadian Pac. Ry., 2004 U.S. Dist. LEXIS 22791 (D.N.D. Nov. 8, 2004).

Injury to Child.

Damages could be awarded for loss of society and companionship in a parent’s action against an allegedly negligent tortfeasor in the injury of a minor child. Jacobs v. Anderson Bldg. Co., 430 N.W.2d 558, 1988 N.D. LEXIS 155 (N.D. 1988).

Loss of Consortium.

—In General.

The effect of this section was not an expansion of the class of potential plaintiffs in loss of consortium claims; rather, it expanded the types of damages available to an already-existing class of plaintiffs. Butz v. World Wide, 492 N.W.2d 88, 1992 N.D. LEXIS 210 (N.D. 1992).

—Children.

Children do not have a cause of action for loss of parental consortium. Butz v. World Wide, 492 N.W.2d 88, 1992 N.D. LEXIS 210 (N.D. 1992).

—Joinder in Underlying Claim.

Plaintiffs bringing loss of consortium claims accruing on and after the date of this opinion must follow the procedure of compulsory joinder to the underlying personal injury action or thereafter be barred from bringing their claims, absent a compelling reason. Butz v. World Wide, 492 N.W.2d 88, 1992 N.D. LEXIS 210 (N.D. 1992).

If the “deprived” party fails to join the underlying personal injury claim, that party must offer the court a compelling reason, for non-joinder will result in an absolute bar to any loss of consortium claim asserted after the conclusion of the underlying action of the “impaired” party. Butz v. World Wide, 492 N.W.2d 88, 1992 N.D. LEXIS 210 (N.D. 1992).

Loss of Enjoyment of Life.

The trial court did not err in refusing plaintiffs’ request to instruct on loss of enjoyment of life as a separate element of damages in a case where a fourteen-year-old boy was permanently disabled from an accidental gunshot wound. First Trust Co. v. Scheels Hardware & Sports Shop, 429 N.W.2d 5, 1988 N.D. LEXIS 153 (N.D. 1988).

Mental Anguish.

Damages for mental anguish may be recovered in a wrongful death action. Hopkins v. McBane, 427 N.W.2d 85, 1988 N.D. LEXIS 152 (N.D. 1988); Dahl ex rel. Dahl v. North Am. Creameries, Inc., 61 N.W.2d 916 (N.D. 1953), overruled on other grounds, Hopkins v. McBane, 427 N.W.2d 85, 77 A.L.R.4th 391 (N.D. 1988); Hyyti v. Smith, 67 N.D. 425, 272 N.W. 747 (1937), distinguished, Jacobson v. Mutual Benefit Health & Accident Ass’n, 73 N.D. 108, 11 N.W.2d 442 (1943), overruled on other grounds, Hopkins v. McBane, 427 N.W.2d 85, 77 A.L.R.4th 391 (N.D. 1988); Stejskal v. Darrow, 55 N.D. 606, 215 N.W. 83, 53 A.L.R. 1096 (1927), overruled on other grounds, Hopkins v. McBane, 427 N.W.2d 85, 77 A.L.R.4th 391 (N.D. 1988) and Haug v. Great N. Ry., 8 N.D. 23, 77 N.W. 97 (N.D. 1898), overruled in part, Hopkins v. McBane, 427 N.W.2d 85, 1988 N.D. LEXIS 152 (N.D. 1988).

Pain and Suffering.

Trial court erred in granting defendant’s motion for a judgment as a matter of law given that the trial court dismissed plaintiff’s personal injury claim under a misconception of the law that a fact finder could not award damages for pain and suffering or other noneconomic loss unless plaintiff offered proof of economic damages. Albrecht v. Metro Area Ambulance, 2001 ND 61, 623 N.W.2d 367, 2001 N.D. LEXIS 58 (N.D. 2001).

Recovery by Children.

Adult children’s action against a doctor and a hospital under the North Dakota Wrongful Death Act, N.D.C.C. ch. 32-21, should not have been dismissed because as children of a decedent, the children were allowed to seek recovery of damages under N.D.C.C. §§ 32-21-03 and 32-21-04, and the non-economic damages requested by the children were permitted under N.D.C.C. § 32-03.2-04. Weigel v. Lee, 2008 ND 147, 752 N.W.2d 618, 2008 N.D. LEXIS 143 (N.D. 2008).

Unborn Child.

Damages in the amount of $50,000 for mental anguish and grief and $100,000 for loss of companionship, society and comfort were not clearly erroneous in an action for the death of an unborn child which would have been the plaintiff’s only daughter, in view of special significance of the mother-daughter relationship in Native American culture. Hopkins v. McBane, 427 N.W.2d 85, 1988 N.D. LEXIS 152 (N.D. 1988).

Failure in a medical malpractice action, to prove such strictly pecuniary losses as lost wages or out-of-pocket expenses did not preclude recovery of any damages for the death of an unborn child. Hopkins v. McBane, 427 N.W.2d 85, 1988 N.D. LEXIS 152 (N.D. 1988).

Wrongful Death of Child.

One may recover damages for loss of society, comfort and companionship in an action for the wrongful death of a child. Hopkins v. McBane, 427 N.W.2d 85, 1988 N.D. LEXIS 152 (N.D. 1988); Jacobs v. Anderson Bldg. Co., 430 N.W.2d 558, 1988 N.D. LEXIS 155 (N.D. 1988).

A parent can recover for the loss of a child’s society and companionship caused by the negligence of another. First Trust Co. v. Scheels Hardware & Sports Shop, 429 N.W.2d 5, 1988 N.D. LEXIS 153 (N.D. 1988).

Plaintiffs, parents of the adult decedent, were authorized to pursue a wrongful death claim against defendant corporation under N.D.C.C. § 32-21-03; therefore, they were also entitled to pursue a claim for non-economic damages as provided under this section because the emotional value of a child to the parents did not expire at majority. Schaaf v. Caterpillar, Inc., 264 F. Supp. 2d 882, 2003 U.S. Dist. LEXIS 12542 (D.N.D. 2003).

Collateral References.

Comparative fault: calculation of net recovery by applying percentage of plaintiff’s fault before or after subtracting amount of settlement by less than all joint tortfeasors, 71 A.L.R.4th 1108.

Who, other than parent, may recover for loss of consortium on death of minor child, 84 A.L.R.5th 687.

Construction and Application of Fraudulent Misjoinder Exception to Complete Diversity Rule,. 65 A.L.R. Fed. 2d 527.

Law Reviews.

Loss of Enjoyment of Life — Duplication of Damages Versus Full Compensation, 63 N.D. L. Rev. 561 (1987).

For Article: The Worth of a Human Life, see 85 N.D. L. Rev. 123 (2009).

North Dakota Supreme Court Review, (Weigel v. Lee, 2008 ND 147, 752 N.W.2d 618 (2008)), see 85 N. Dak. L. Rev. 503 (2009).

Application.

This section applies only to claims for relief which accrued after the effective date of the statute, July 8, 1987. Nelson v. Trinity Medical Ctr., 419 N.W.2d 886, 1988 N.D. LEXIS 27 (N.D. 1988).

Charitable Gifts.

For the purposes of this section, a charitable gift is not a sum “paid or to be paid to cover an economic loss,” and the legislature did not intend to treat charitable gifts as a “collateral source.” Dewitz v. Emery, 508 N.W.2d 334, 1993 N.D. LEXIS 215 (N.D. 1993).

Legislative Intent.

The legislative intent of this section was to change the collateral source rule to eliminate double recovery from sources such as Workers' Compensation and Social Security. Dewitz v. Emery, 508 N.W.2d 334, 1993 N.D. LEXIS 215 (N.D. 1993).

Personal Insurance Exception.

To the extent that an injured party’s family benefited from a service benefit agreement between the family’s health insurance carrier and health care providers, the benefit was traceable to the family’s insurance policy and, therefore, was properly included in the personal insurance exception of this section. Dewitz v. Emery, 508 N.W.2d 334, 1993 N.D. LEXIS 215 (N.D. 1993).

The personal insurance exception in this section includes insurance purchased for a minor by a parent. Dewitz v. Emery, 508 N.W.2d 334, 1993 N.D. LEXIS 215 (N.D. 1993).

Benefits paid to personal injury plaintiff from Indian Health Services did not fall under the personal insurance exception to the collateral source rule and the district court did not err in reducing the judgment by the amount of those payments. Leingang v. George, 1999 ND 32, 589 N.W.2d 585, 1999 N.D. LEXIS 34 (N.D. 1999).

Social Security Disability Benefits.

Contractor’s motion to reduce the amount of damages awarded to a miner and his wife in a personal injury action under this section was denied because this section does not apply to social security disability benefits; Social Security is insurance purchased by an individual using a percentage of his or her paycheck, and the statute specifically excludes insurance. Krein v. Indus. Co., of Wyoming, 2003 U.S. Dist. LEXIS 18760 (D.N.D. Oct. 21, 2003).

Collateral References.

Collateral source rule: admissibility of evidence of availability to plaintiff of free public special education on issue of amount of damages recoverable from defendant, 41 A.L.R.5th 771.

Amount.

Where the jury specifically found that insurance company had acted in a malicious, oppressive, or fraudulent manner toward its policyholder, the necessary predicate for an award of punitive damages and this finding was supported by substantial evidence on the record, and the award of fifty thousand dollars was not excessive. Maristuen v. National States Ins. Co., 57 F.3d 673, 1995 U.S. App. LEXIS 14733 (8th Cir. N.D. 1995).

Consideration of claim.

District court misapplied the law in finding the necessary threshold of malice to add a claim for punitive damages as there was no evidence that the driver acted with ill will or wrongful motive and intended to injure the victims. Zander v. Morsette, 2021 ND 84, 959 N.W.2d 838, 2021 N.D. LEXIS 84 (N.D. 2021).

Consideration of Claim.

In an action brought pursuant to 29 USCS § 1132(a)(1)(B), a federal district court declined to consider the propriety of any punitive damage claim where the individual had yet to request leave to amend the complaint to include such a claim as required by this section. Slater v. Hartford Life, 2003 U.S. Dist. LEXIS 18172 (D.N.D. Oct. 1, 2003).

Dependence On Underlying Claims.

Law firm’s exemplary damages claim was properly dismissed because the claim was not independent of underlying abuse of process and malicious prosecution claims, which were properly dismissed. Rodenburg Law Firm v. Sira, 2019 ND 205, 931 N.W.2d 687, 2019 N.D. LEXIS 207 (N.D. 2019).

Evidence Insufficient.

Plaintiffs failed to make a showing sufficient to withstand defendants’ motion for summary judgment on the issue of punitive damages, where there was no evidence indicating that defendants’ acts were motivated by evil motive or intent or that their acts constituted oppression, fraud, malice or callous or reckless indifference to the rights of others. Veneklase v. City of Fargo, 904 F. Supp. 1038, 1995 U.S. Dist. LEXIS 19929 (D.N.D. 1995), rev'd in part, 78 F.3d 1264, 1996 U.S. App. LEXIS 3860 (8th Cir. N.D. 1996).

Northbound motorists’ motion to amend their complaint to add an exemplary damages claim, pursuant to N.D.C.C. § 32-03.2-11(1), was denied because the knowledge of an eastbound motorist, who did not see their car as she crossed an intersection, that her antidepressant medication should not have been taken with alcohol did not support a finding of oppression, fraud, or actual malice. McHugh v. Jacobs, 450 F. Supp. 2d 1019, 2006 U.S. Dist. LEXIS 74403 (D.N.D. 2006).

Given the lack of viable substantive claims by a debtor’s customers against a creditor, the customers’ claim for exemplary damages was futile, and a trial court was within its discretion to deny the customers’ motion to amend their pleadings to add a claim for exemplary damages. Thimjon Farms P'ship v. First Int'l Bank & Thimjon Farms P'ship v. First Int'l Bank & Trust, 2013 ND 160, 837 N.W.2d 327, 2013 N.D. LEXIS 162 (Sept. 6, 2013).

Defendant's use of plaintiff's property for disposal of off-lease saltwater was intentional and amounted to civil trespass because its use of property for that purpose went beyond its rights under lease. Injunction against further use of property for that purpose was appropriate, and plaintiff was entitled to statutory damages in same amount as would be appropriate if restitution principles were applied, but plaintiff was not entitled to punitive damages because it failed to prove that defendant acted with oppression, fraud, or actual malice. Raaum Estates v. Murex Petroleum Corp., 2017 U.S. Dist. LEXIS 103345 (D.N.D. July 5, 2017).

Evidence Sufficient.

Evidence was sufficient for jury to find insurer guilty of oppression, fraud, or malice, and award exemplary damages, where insurer did not properly investigate claim, alleged insured intended to misrepresent his income in application without evidence of such intent, talked to insured about settlement when he was hospitalized and under medication, threatened to sue if he sought help from an attorney, and suspended his benefits when it knew he was totally disabled. Ingalls v. Paul Revere Life Ins. Group, 1997 ND 43, 561 N.W.2d 273, 1997 N.D. LEXIS 61 (N.D. 1997).

Widow’s motion for leave to file an amended complaint to include a claim for punitive damages pursuant to N.D.C.C. § 32-03.2-11 was granted where the evidence submitted by the parties was sufficient, at this stage, to support a finding by the trier of fact that a preponderance of the evidence established that the corporation acted with oppression, fraud, or actual malice because the evidence presented to date arguably showed that (1) the corporation’s engineers were aware of a defective condition that existed; (2) the defective condition was not “designed out” and the speed control cable could stick with an open throttle to varying degrees; (3) the corporation did not adopt the protective boot or grommet that would have arguably “designed out” the defective condition; and (4) the corporation was aware that dirt and debris inside a speed control cable could have caused it to stick and that the application of the brakes when the speed control cable was stuck may not have necessarily overcome a stuck-open throttle. Olson v. Ford Motor Co., 2005 U.S. Dist. LEXIS 30526 (D.N.D. Nov. 29, 2005).

Punitive damage award was proper because defendant insurer’s tortious conduct (labeling plaintiff insured an arsonist based on insufficient grounds) evinced an indifference to or disregard of plaintiffs’ financial, emotional, and physical well-being, the insurer knew that plaintiffs were financially vulnerable, and the insurer’s treatment of plaintiffs’ claim was typical of how it handled similar claims; the record provided evidence of the reprehensibility of the insurer’s conduct. Moore v. Am. Family Mut. Ins. Co., 576 F.3d 781, 2009 U.S. App. LEXIS 18133 (8th Cir. N.D. 2009).

Issue for Jury.

There was evidence to support plaintiff’s claim of punitive damages and overcome summary judgment, where the court found reasonable jurors could conclude that police officers’ conduct in arresting plaintiff was justified, negligent, reckless, grossly negligent or willful; since the officers’ conduct was in dispute, summary judgment rejecting plaintiff’s request for punitive damages was not proper. Habiger v. City of Fargo, 905 F. Supp. 709, 1995 U.S. Dist. LEXIS 20073 (D.N.D. 1995).

Law of Case.

Defendant did not object to the jury being instructed on constructive fraud, did not object to the jury verdict that included a finding on constructive fraud, and did not object to the argument that exemplary damages were warranted at least in part due to constructive fraud; therefore, constructive fraud supporting exemplary damages became law of the case and the district court did not err entering judgment accordingly. McCormick, Inc. v. Fredericks, 2020 ND 161, 946 N.W.2d 728, 2020 N.D. LEXIS 170 (N.D. 2020).

Misleading Information.

The trial court’s finding that lessee had entered the original lease with misleading information did not constitute a specific finding of oppression, fraud, or malice, and thus the lessee was not entitled to an award of attorney fees and costs. Ehrman v. Feist, 1997 ND 180, 568 N.W.2d 747, 1997 N.D. LEXIS 198 (N.D. 1997).

Pleadings.

District court did not err by failing to award exemplary damages. Because the record did not show plaintiff moved to amend the pleadings to claim exemplary damages as required by statute, exemplary damages were not properly before the district court. Kuntz v. Leiss, 2020 ND 253, 952 N.W.2d 35, 2020 N.D. LEXIS 273 (N.D. 2020).

Retroactive Application.

Although this section did not govern because it was not enacted until 1993, the court applied the rule that when questions of law are presented for the first time, the court can take a sense of direction from the enactment of a later nonretroactive statute. Delzer v. United Bank, 1997 ND 3, 559 N.W.2d 531, 1997 N.D. LEXIS 9 (N.D. 1997).

The fact the legislature reduced the deterrent value of exemplary damages by restricting the extent that wrongdoers could be punished was not persuasive evidence that exemplary damages for conduct occurring before the legislative change was excessive. Ingalls v. Paul Revere Life Ins. Group, 1997 ND 43, 561 N.W.2d 273, 1997 N.D. LEXIS 61 (N.D. 1997).

Verdict Not Inconsistent.

There was no irreconcilable inconsistency between the jury’s award of attorney fees and its findings that employers did not abuse their qualified privilege and that a former employee was not entitled to an award of exemplary damages. The state of mind required for the jury to find no abuse of the qualified privilege and no entitlement to exemplary damages differs from the state of mind required for the jury to award attorney fees. Forster v. W. Dakota Veterinary Clinic, Inc., 2004 ND 207, 689 N.W.2d 366, 2004 N.D. LEXIS 348 (N.D. 2004), abrogated, Minto Grain, LLC v. Tibert, 2009 ND 213, 776 N.W.2d 549, 2009 N.D. LEXIS 224 (N.D. 2009).

Amount.

Under former N.D.C.C. § 32-03-07, there was no requirement that a punitive damage award be reasonably proportionate to the award of actual damages; however, an excessive punitive damages award would be set aside. Smith v. American Family Mut. Ins. Co., 294 N.W.2d 751, 1980 N.D. LEXIS 247 (N.D. 1980).

Under former N.D.C.C. § 32-03-07, in fixing punitive damages against defendant, a jury could consider defendant’s wealth. Dahlen v. Landis, 314 N.W.2d 63, 1981 N.D. LEXIS 371 (N.D. 1981).

Punitive damages are excessive when the amount of the award is so great that it indicates passion or prejudice on the part of the jury. Dewey v. Lutz, 462 N.W.2d 435, 1990 N.D. LEXIS 200 (N.D. 1990).

Breach of Contract.

Under former N.D.C.C. § 32-03-07, where plaintiff had not elected to waive its contract with defendant and recover in tort, it was not entitled to a jury instruction on the issue of punitive damages, even though it alleged it was entitled to them because defendant had threatened to put plaintiff out of business if it did not perform according to defendant’s expectations under a contract. Jamestown Farmers Elevator, Inc. v. General Mills, Inc., 413 F. Supp. 764, 1976 U.S. Dist. LEXIS 15288 (D.N.D. 1976), aff'd in part and rev'd in part, 552 F.2d 1285, 1977 U.S. App. LEXIS 13615 (8th Cir. N.D. 1977).

Distributor was not entitled to recover exemplary damages under former N.D.C.C. § 32-03-07 in an action against manufacturer for breach of the distributorship contract. Hall GMC v. Crane Carrier Co., 332 N.W.2d 54, 1983 N.D. LEXIS 256 (N.D. 1983).

Breach of Insurer’s Duty to Defend.

Action by an insured against an insurer, which alleged tortious breach of the implied covenant of good faith and fair dealing, malice, oppression, and fraud predicated on the insurer’s failure to defend the insured in a legal action as required by a provision in the policy, was an action in tort for which exemplary damages could be awarded under former section 32-03-07. Smith v. American Family Mut. Ins. Co., 294 N.W.2d 751, 1980 N.D. LEXIS 247 (N.D. 1980).

Duties in Partnership.

Absent an overriding provision in a partnership agreement, the courts of this state recognize and impose the full panoply of fiduciary duties in a partnership. Hence, these duties and obligations are in addition to the agreement, and an award of punitive damages for their breach was not precluded by former section 32-03-07. Froemming v. Gate City Federal Sav. & Loan Asso., 822 F.2d 723, 1987 U.S. App. LEXIS 7348 (8th Cir. N.D. 1987).

Exemplary Damages.

Under former N.D.C.C. § 32-03-07, a specific finding of oppression, fraud, or malice, actual or presumed, by the trier of fact was required to support an award of punitive damages. Napoleon Livestock Auction v. Rohrich, 406 N.W.2d 346, 1987 N.D. LEXIS 310 (N.D. 1987).

The absence of a specific finding of oppression, fraud, or malice, actual or presumed, was fatal to an award of exemplary damages under former 32-03-07. Olson v. Fraase, 421 N.W.2d 820, 1988 N.D. LEXIS 89 (N.D. 1988).

Findings Required to Support Award.

Under former N.D.C.C. § 32-03-07, a specific finding of oppression, fraud, or malice, actual or presumed, by trier of fact was necessary to support an award of exemplary damages; intentional or willful conduct is not synonymous with fraudulent, oppressive or malicious conduct. Bismarck Realty Co. v. Folden, 354 N.W.2d 636, 1984 N.D. LEXIS 324 (N.D. 1984).

As a prerequisite to an award of punitive damages, the jury must find oppression, fraud, or malice, actual or presumed. Slaubaugh v. Slaubaugh, 466 N.W.2d 573, 1991 N.D. LEXIS 20 (N.D. 1991).

Fraud or Malice.

Malice can be presumed from recklessness. Herold v. Burlington Northern, Inc., 761 F.2d 1241, 1985 U.S. App. LEXIS 31426 (8th Cir. N.D.), cert. denied, 474 U.S. 888, 106 S. Ct. 208, 88 L. Ed. 2d 177, 1985 U.S. LEXIS 3868 (U.S. 1985).

The only significant distinction between the torts of fraud and deceit is whether the wrongdoer happens to be a party to a contract. The conduct prohibited under the separate statutory definitions of fraud and deceit is substantially identical and, for purposes of the punitive damages statute (former N.D.C.C. § 32-03-07) fraud and deceit are synonymous. Dewey v. Lutz, 462 N.W.2d 435, 1990 N.D. LEXIS 200 (N.D. 1990).

Fraudulent Representations.

Under former N.D.C.C. § 32-03-07, where obligation not to make fraudulent representations arises from law, not contract, the breach of that obligation allows the jury to award exemplary damages. Powers v. Martinson, 313 N.W.2d 720, 1981 N.D. LEXIS 360 (N.D. 1981).

Insurance Company Acting in Bad Faith.

Bad faith on part of insurance company in denying coverage under its policy with an insured was not sufficient in itself to justify the awarding of exemplary damages to the insured under former N.D.C.C. § 32-03-07; an additional finding of oppression, fraud, or malice, actual or implied, was required. Corwin Chrysler-Plymouth v. Westchester Fire Ins. Co., 279 N.W.2d 638, 1979 N.D. LEXIS 248 (N.D. 1979).

Meaning of Terms.

The statutory terms “oppression, fraud, or malice” have well-established meanings, are sufficiently clear to persons of ordinary intelligence to afford a practical guide for behavior, and are capable of application in an even-handed manner. Stoner v. Nash Finch, Inc., 446 N.W.2d 747, 1989 N.D. LEXIS 187 (N.D. 1989).

Mitigation.

The doctrine of mitigation of damages did not require a reduction in the amount of damages otherwise recoverable under former N.D.C.C. § 32-03-07 by assignor of oil and gas leases for breach of reassignment clauses by assignee; assignor’s purchase of other leases was a transaction distinct from any rights to leases for a different period of time, and there was no reason assignee should benefit from assignor’s additional effort and investment in a separate transaction. Mike Golden, Inc. v. Tenneco Oil Co., 450 N.W.2d 716, 1990 N.D. LEXIS 4 (N.D. 1990).

Oppression.

A father’s action guaranteeing his son’s bank debt, having the alleged effect of keeping cattle from the plaintiff who had purchased the cattle, did not fit the definition of oppression so as to warrant continuing a claim for punitive damages under former N.D.C.C. § 32-03-07 after subsequent discovery should have made it apparent to the plaintiff that such a claim was frivolous. Napoleon Livestock Auction v. Rohrich, 406 N.W.2d 346, 1987 N.D. LEXIS 310 (N.D. 1987).

This section authorizes the court to give damages to punish a defendant for oppressive conduct. “Oppression,” as used in this statute, means “subjecting a person to cruel and unjust hardship in conscious disregard of his rights.” Harwood State Bank v. Charon, 466 N.W.2d 601, 1991 N.D. LEXIS 25 (N.D. 1991).

Pleadings.

Complaint alleging that defendant engaged in “unlawful and prohibited conduct”; that defendant’s act “was not reasonably necessary”; that defendant did not take “reasonable care to avoid unnecessary injury to plaintiffs”; that defendant acted “without regard to the reasonable carrying capacity of plaintiffs’ land”; and that defendant’s act was “not a reasonable use of land” was insufficient to support an award of exemplary damages under former N.D.C.C. § 32-03-07. Intentional or willful conduct is not synonymous with oppressive, fraudulent or malicious conduct, and allegations of willful and intentional conduct will not warrant such a recovery. Lang v. Wonnenberg, 455 N.W.2d 832, 1990 N.D. LEXIS 104 (N.D. 1990).

Presumed Malice.

Presumed malice may be found where the defendant’s conduct amounts to a reckless disregard of the rights of others. Slaubaugh v. Slaubaugh, 466 N.W.2d 573, 1991 N.D. LEXIS 20 (N.D. 1991).

Purpose of Punitive Damages.

The purpose for awarding punitive damages is to punish the wrongdoer in order to deter him, and others, from repetition of the wrongful conduct. Dahlen v. Landis, 314 N.W.2d 63, 1981 N.D. LEXIS 371 (N.D. 1981).

Retaining Personal Property.

Where a landlord retained virtually all of a tenant’s personal property for several months, disregarding notice that his actions were unlawful and legal advice to that effect, the trial court’s consequent award of exemplary damages under former N.D.C.C. § 32-03-07 was affirmed. Kipp v. Lipp, 495 N.W.2d 56, 1993 N.D. LEXIS 6 (N.D. 1993).

Wrongful Discharge.

Under former N.D.C.C. § 32-03-07, a suit for wrongful discharge in retaliation for seeking workmen’s compensation is the kind of tort claim which allows exemplary damages. Krein v. Marian Manor Nursing Home, 415 N.W.2d 793, 1987 N.D. LEXIS 435 (N.D. 1987).

Collateral References.

Sufficiency of showing of actual damages to support award of punitive damages — modern cases, 40 A.L.R.4th 11.

Punitive damages for interference with contract or business relationship, 44 A.L.R.4th 1078.

Discovery of defendant’s sales, earnings, or profits on issue of punitive damages in tort action, 54 A.L.R.4th 998.

Punitive damages as within coverage of uninsured or underinsured motorist insurance, 54 A.L.R.4th 1186.

Plaintiff’s rights to punitive or multiple damages when cause of action renders both available, 2 A.L.R.5th 449.

Excessiveness or inadequacy of punitive damages awarded in personal injury or death cases, 12 A.L.R.5th 195.

Validity of state statutory cap on punitive damages, 103 A.L.R.5th 379.

Liability of cigarette manufacturers for punitive damages, 108 A.L.R.5th 343.

Law Reviews.

The Drunken Driver and Punitive Damages: A Survey of the Case Law and the Feasibility of a Punitive Damage Award in North Dakota, 59 N.D. L. Rev. 413 (1983).

Punitive Damages and Insurance: Are Punitive Damages Insurable? The North Dakota Supreme Court Says Yes, Despite North Dakota’s Public Policy to the Contrary, 70 N.D. L. Rev. 637 (1994).

Consideration and Mutual Assent.

Consideration and mutual assent in a contract are elements prerequisite to specific performance. Kaster v. Mason, 13 N.D. 107, 99 N.W. 1083, 1904 N.D. LEXIS 25 (N.D. 1904).

Contract to Convey Real Property.

Evidence that farm owner intended to sell his farming assets to his nephews for less than full market value to give them a “good deal” so they could “make it,” combined with the nephews’ modified written offer to buy the farm assets made the terms of the parties’ agreement sufficiently certain to support the trial court’s order specifically enforcing the contract. Kuntz v. Kuntz, 1999 ND 114, 595 N.W.2d 292, 1999 N.D. LEXIS 94 (N.D. 1999).

Contract to Devise Property.

Contract to devise property or to make a will may be enforced by specific performance. Kuhn v. Kuhn, 281 N.W.2d 230, 1979 N.D. LEXIS 270 (N.D. 1979).

Contracts Containing Continuous Covenants.

A court of equity will not decree specific performance of contracts containing continuous covenants the enforcement of which might require the constant supervision of a court. Kidd v. McGinnis, 1 N.D. 331, 48 N.W. 221, 1891 N.D. LEXIS 2 (N.D. 1891).

Application of Statute.

Under the statute, where there is no mutual remedy between the parties to a contract, an action for specific performance by a party thereto will not lie unless such party has performed the contract on his part or he can be compelled specifically to perform the same. Knudtson v. Robinson, 18 N.D. 12, 118 N.W. 1051, 1908 N.D. LEXIS 111 (N.D. 1908).

The rule of mutuality either as a rule of equity or under this section has no application to contracts that have been fully performed by one seeking specific performance. Alfson v. Anderson, 78 N.W.2d 693, 1956 N.D. LEXIS 145 (N.D. 1956).

Contract for Conveyance of Land.

Where the covenant to pay is independent, an action at law for the purchase price may be maintained, but where the time for the delivery of the deed has arrived before suit is brought for the price, the only action which on principle can be maintained by the vendor is one for specific performance. Shelly v. Mikkelson, 5 N.D. 22, 63 N.W. 210, 1895 N.D. LEXIS 7 (N.D. 1895).

Where a contract for the sale of realty required the purchaser to deliver specified quantities of wheat or the equivalent in money, an action for the purchase price would be the equivalent of an action for specific performance, so there was mutuality of remedy. Pederson v. Dibble, 12 N.D. 572, 98 N.W. 411, 1904 N.D. LEXIS 8 (N.D. 1904).

An action for specific performance may be maintained upon a contract for the conveyance of land which is signed only by the vendor. Beddow v. Flage, 22 N.D. 53, 132 N.W. 637, 1911 N.D. LEXIS 14 (N.D. 1911).

Specific performance of a land contract cannot be enforced unless both parties are bound by the contract. Ugland v. Kolb, 23 N.D. 158, 134 N.W. 879, 1912 N.D. LEXIS 63 (N.D. 1912).

A contract for the sale of real estate ordinarily imports mutuality. The vendor may be compelled by a decree of specific performance to convey according to the terms and conditions provided in the contract or the vendee may be compelled to perform specifically even though his performance consists only of the payment of the purchase price. Alfson v. Anderson, 78 N.W.2d 693, 1956 N.D. LEXIS 145 (N.D. 1956).

Purchasers who breached agreement for sale of grain elevator by stopping payment of their check were not in position to demand specific performance under this section. Zundel v. Farmers Union Grain Co., 79 N.W.2d 48, 1956 N.D. LEXIS 150 (N.D. 1956).

Lack of mutuality did not preclude a purchaser from seeking partial specific performance where the seller did not own all of the property included in the contract. Green v. Gustafson, 482 N.W.2d 842, 1992 N.D. LEXIS 56 (N.D. 1992).

Declaration of Common Law Rule.

This section is merely a declaration of the long-standing common law rule. Green v. Gustafson, 482 N.W.2d 842, 1992 N.D. LEXIS 56 (N.D. 1992).

Equitable Remedy.

Specific performance is an equitable remedy governed by equitable principles. Alfson v. Anderson, 78 N.W.2d 693, 1956 N.D. LEXIS 145 (N.D. 1956).

Oil and Gas Lease.

A contract to make an oil and gas lease, which may be terminated at the will of the lessee, is specifically enforceable if the contract contains important mutually enforceable provisions such as the payment of a substantial sum as consideration for making the lease and rental for the first rental period which are in themselves enforceable regardless of the surrender of the lease. Alfson v. Anderson, 78 N.W.2d 693, 1956 N.D. LEXIS 145 (N.D. 1956).

A party to a contract to execute an oil and gas lease cannot prevent performance by the opposite party and use that lack of performance as a basis for invoking this section as a defense to an action for specific performance. Alfson v. Anderson, 78 N.W.2d 693, 1956 N.D. LEXIS 145 (N.D. 1956).

Lack of mutuality of remedy in a proposed lease is not always fatal to the right to specifically enforce a contract to make such a lease. Alfson v. Anderson, 78 N.W.2d 693, 1956 N.D. LEXIS 145 (N.D. 1956).

Collateral References.

Specific Performance 6, 32.

71 Am. Jur. 2d, Specific Performance, §§ 24 et seq.

81 C.J.S. Specific Performance, §§ 8, 9.

Land contract conditioned upon purchaser’s securing loan, 5 A.L.R.2d 287.

Will or conveyance of property at death in consideration of support or services, mutuality as affecting specific performance of contract for, during promisor’s lifetime, 7 A.L.R.2d 1166, 1171.

Termination: specific performance of contract, other than lease or agreement therefor, or contract for services, terminable by one party but not the other, 8 A.L.R.2d 1208.

Comment note: Mutuality of remedy as essential to granting of specific performance, 22 A.L.R.2d 508.

Specific performance of land sale contract providing that title must be satisfactory to purchaser, 47 A.L.R.2d 455, 461.

Failure of vendee to make required payments on time, specific performance of land contract notwithstanding, 55 A.L.R.3d 10.

Law Reviews.

Specific Performance of Land Contracts in North Dakota, 26 Bar Briefs, State Bar Ass’n of N.D. 389 (1950).

Contract for Sale of Real Property.

While this section supports buyer’s right to specific performance of contract for sale of real property on the ground that monetary damages are presumed to be inadequate, no similar statutory presumption exists to support an action for specific performance by the seller of real property; therefore, sellers were not entitled to specific performance of contract for sale of real property where they failed to meet their burden of proving that the legal remedy for breach of the contract was inadequate. Wolf v. Anderson, 334 N.W.2d 212, 1983 N.D. LEXIS 283 (N.D. 1983).

Royalty Interest.

The trial court did not err in granting plaintiff, a corporation engaged in finding abandoned or marginally profitable oil and gas wells, specific performance of an overriding royalty interest in the wells, since a royalty interest is real property. Geostar Corp. v. Parkway Petroleum, 495 N.W.2d 61, 1993 N.D. LEXIS 12 (N.D. 1993).

Specific Performance.

District court erred in awarding damages instead of specific performance in a quiet title action where the presumption under N.D.C.C. § 32-04-09 placed the onus on the sellers to prove monetary damages were adequate once the purchasers showed the inadequacy of damages and pled for specific performance, and the district court did not apply that presumption. Dale Exploration, LLC v. Hiepler, 2018 ND 271, 920 N.W.2d 750, 2018 N.D. LEXIS 281 (N.D. 2018).

Arbitration Agreements.

Binding arbitration is not against public policy, and in the absence of fraud or deception, an agreement between a school board and a teacher’s association to submit certain disputes to binding arbitration is valid. West Fargo Pub. Sch. Dist. v. West Fargo Educ. Ass'n, 259 N.W.2d 612, 1977 N.D. LEXIS 215 (N.D. 1977).

Contractual provision between city and contractor providing for specific enforcement of agreement to arbitrate was unenforceable. Wagner Bros. v. Williston, 335 N.W.2d 328, 1983 N.D. LEXIS 341 (N.D. 1983).

Certainty of Terms.

Specific performance must be denied when the terms of a contract are not sufficiently certain to make the act which is to be done clearly ascertainable. Beebe v. Hanson, 40 N.D. 559, 169 N.W. 31, 1918 N.D. LEXIS 95 (N.D. 1918).

Purchasers were not entitled to court-ordered specific performance of purchase agreement for sale of apartment building, which was held not to be sufficiently certain nor just and reasonable, where seller’s interest was to be subordinated to a lender’s interest. Linderkamp v. Hoffman, 1997 ND 64, 562 N.W.2d 734, 1997 N.D. LEXIS 79 (N.D. 1997).

Employment Contracts.

Reinstatement is not an enforceable remedy because it constitutes an obligation to employ another in personal service. Dimond v. State, 1999 ND 228, 603 N.W.2d 66, 1999 N.D. LEXIS 242 (N.D. 1999).

Injunction.

A final injunction, when authorized, may be granted to restrain the breach of a contract unless it is one the performance of which could not be specifically enforced. Mevorah v. Goodman, 65 N.W.2d 278, 1954 N.D. LEXIS 85, 1954 N.D. LEXIS 86 (N.D. 1954).

Teacher’s Contract.

A teacher cannot specifically enforce a contract of employment. Henley v. Fingal Pub. Sch. Dist., 219 N.W.2d 106, 1974 N.D. LEXIS 210 (N.D. 1974).

Teacher employed by a private institution has no right to specific enforcement or injunctive relief to obtain reinstatement of her teaching position for alleged wrongful termination or to prevent a breach of her employment contract. Schauer v. Jamestown College, 323 N.W.2d 114, 1982 N.D. LEXIS 369 (N.D. 1982).

Telephone Service.

This section does not apply to a proceeding to enjoin the removal of telephones and discontinuance of service in certain railway depots. Great N. Ry. v. Sheyenne Tel. Co., 27 N.D. 256, 145 N.W. 1062, 1914 N.D. LEXIS 44 (N.D. 1914).

Collateral References.

Specific Performance 14, 27-30, 73, 80.

81 C.J.S. Specific Performance, §§ 28-31, 45, 63, 71, 76.

Financing: provision making purchaser’s obligation under land contract conditional upon securing loan, 5 A.L.R.2d 287.

Conveyance or devise of property at death in consideration of services, specific performance of contract for, during promisor’s lifetime, 7 A.L.R.2d 1166, 1171.

Compromise and settlement agreement, 48 A.L.R.2d 1211.

Indefiniteness as precluding specific performance of contract for sale or exchange of real estate failing to specify time for giving of possession, 56 A.L.R.2d 1272, 1274.

Uncertainty as to terms of mortgage or of accompanying note or bond contemplated by real estate sales contract as affecting right to specific performance, 60 A.L.R.2d 251.

Arbitrators’ power to award injunction or specific performance, 70 A.L.R.2d 1055.

Price: requisite definiteness of price to be paid in event of exercise of option for purchase of property, 2 A.L.R.3d 701.

Subordination agreement: requisite definiteness of provision in contract for sale or lease of land, that vendor or landlord will subordinate his interest to permit other party to obtain financing, 26 A.L.R.3d 855.

Law Reviews.

Arbitration of Claims of Contract Unconscionability, 56 N.D. L. Rev. 7 (1980).

Discretion of Trial Court.

The granting of specific performance rests in the sound discretion of the trial court and the supreme court will not interfere with that discretion unless shown it was abused. Harrington v. Harrington, 365 N.W.2d 552, 1985 N.D. LEXIS 288 (N.D. 1985).

Although it had not cited N.D.C.C. § 32-04-13 in granting the brother specific performance, the district court had discussed the case law in analyzing the undisputed facts in the instant case. Molbert v. Kornkven, 2018 ND 120, 910 N.W.2d 888, 2018 N.D. LEXIS 114 (N.D. 2018).

Inadequate Consideration.

Specific performance will not be enforced unless the contract is just and reasonable and made for an adequate consideration. Carey v. Campbell, 45 N.D. 273, 177 N.W. 372, 1920 N.D. LEXIS 121 (N.D. 1920).

Specific performance of an alleged option contract for the sale of land should have been denied where there was no consideration for the contract. Streeter v. Archer, 46 N.D. 251, 176 N.W. 826, 1920 N.D. LEXIS 2 (N.D. 1920).

Inadequacy of consideration to warrant a denial of specific performance of a contract must be determined upon a consideration of all the circumstances of the case and it must appear that the transaction is not fair and reasonable. Arhart v. Thompson, 75 N.D. 569, 31 N.W.2d 56, 1948 N.D. LEXIS 82 (N.D. 1948).

Mere inadequacy of consideration does not justify a denial of specific performance in the absence of unfairness or overreaching. Harrington v. Harrington, 365 N.W.2d 552, 1985 N.D. LEXIS 288 (N.D. 1985).

Generally, specific performance will be denied only when the inadequacy of consideration is such as to demonstrate some gross imposition, undue influence, or shocks the conscience. Harrington v. Harrington, 365 N.W.2d 552, 1985 N.D. LEXIS 288 (N.D. 1985).

Misrepresentation.

Because credible testimony supported the family’s position that the buyers misrepresented the disputed contract to the family as a right of first refusal, the buyers were not entitled to specific performance under N.D.C.C. § 32-04-13 due to their misrepresentations. Landers v. Biwer, 2006 ND 109, 714 N.W.2d 476, 2006 N.D. LEXIS 111 (N.D. 2006).

Not Just and Reasonable.

Purchasers were not entitled to court-ordered specific performance of purchase agreement for sale of apartment building, which was held not to be sufficiently certain nor just and reasonable, where seller’s interest was to be subordinated to a lender’s interest. Linderkamp v. Hoffman, 1997 ND 64, 562 N.W.2d 734, 1997 N.D. LEXIS 79 (N.D. 1997).

Terms of Contract Uncertain.

Specific performance must be denied when the terms of a contract are not sufficiently certain to make the act which is to be done clearly ascertainable. Beebe v. Hanson, 40 N.D. 559, 169 N.W. 31, 1918 N.D. LEXIS 95 (N.D. 1918).

Undue Influence.

Undue influence is ground for denial of specific performance; and the existence of undue influence may be shown by 1. a person who can be influenced; 2. improper influence exerted; and 3. submission to the overmastering effect of such conduct. Sand v. Red River Nat'l Bank & Trust Co., 224 N.W.2d 375, 1974 N.D. LEXIS 132 (N.D. 1974).

Collateral References.

Specific Performance 16, 48-54, 87-89, 97.

81 C.J.S. Specific Performance, §§ 35, 36, 40-42, 77, 78, 82-99.

Misrepresentation as to matters other than quantity or title, specific performance with abatement from purchase price for, 7 A.L.R.2d 1331.

Change of conditions after execution of contract or option for sale of real property as affecting right to specific performance, 11 A.L.R.2d 390.

Allegations: necessity and sufficiency of allegation, in a suit for specific performance on a contract for the sale of land, as to the adequacy of the consideration or as to the fairness of the contract, 100 A.L.R.2d 551.

Failure of vendee to make required payments on time, specific performance of land contract notwithstanding, 55 A.L.R.3d 10.

Abandonment of Contract.

Equity will not extend the extraordinary relief afforded by specific performance to a vendee who has been grossly negligent of his rights or has abandoned his contract. Raasch v. Goulet, 57 N.D. 674, 223 N.W. 808, 1929 N.D. LEXIS 315 (N.D. 1929), overruled, Ziebarth v. Kalenze, 238 N.W.2d 261, 1976 N.D. LEXIS 185 (N.D. 1976).

Contract to Convey Land.

Equity, before specifically enforcing a contract to convey real estate, will insist on showing the utmost good faith on the part of the purchaser. Raasch v. Goulet, 57 N.D. 674, 223 N.W. 808, 1929 N.D. LEXIS 315 (N.D. 1929), overruled, Ziebarth v. Kalenze, 238 N.W.2d 261, 1976 N.D. LEXIS 185 (N.D. 1976).

Option to Purchase Land.

Plaintiff tenant was entitled to specific performance of contract giving him an option to purchase land upon tender of all sums coming to the defendant landlord, including damages sustained by defendant due to plaintiff’s noncompliance with all of the contract provisions. Kern v. Kelner, 77 N.D. 948, 48 N.W.2d 90, 1951 N.D. LEXIS 125 (N.D. 1951).

Part Performance.

As a general rule, specific performance cannot be enforced in favor of a party who has not fully and fairly performed all the conditions precedent on his part to the obligation of the other party; but when his failure to perform is only partial and capable of being fully compensated, specific performance may be compelled upon full compensation being made for the default. Kern v. Kelner, 77 N.D. 948, 48 N.W.2d 90, 1951 N.D. LEXIS 125 (N.D. 1951).

Collateral References.

Specific Performance 10, 13, 40-47, 94.

81 C.J.S. Specific Performance, §§ 10, 13, 14, 50-54, 82-99.

Change of conditions after execution of contract or option for sale of real property as affecting right to specific performance, 11 A.L.R.2d 390.

Futility as affecting specific performance of agreement, or provision thereof, involving partnership at will, 70 A.L.R.2d 618.

Failure of vendee to make required payments on time, specific performance of land contract notwithstanding, 55 A.L.R.3d 10.

Name of Grantee Omitted from Deed.

A contract for the sale of land is not enforceable by specific performance where title is not reasonably free from doubt. Brugman v. Charlson, 44 N.D. 114, 171 N.W. 882, 1919 N.D. LEXIS 193 (N.D. 1919).

Nonmerchantable Title.

A purchaser of land cannot be compelled to accept a deed if it appears that the title is not merchantable. Easton v. Lockhart, 10 N.D. 181, 86 N.W. 697, 1901 N.D. LEXIS 19 (N.D. 1901).

Collateral References.

Specific Performance 95.

81 C.J.S. Specific Performance, § 99.

Nature of deed which may be required of vendor who was unable to convey title for which he has contracted, 13 A.L.R.2d 1462.

Satisfactory to purchaser, land sale contract providing that title must be, 47 A.L.R.2d 455, 461.

Zoning or rezoning of property, provision making option contract subject to, 76 A.L.R.2d 1195, 1196.

Possibility of issue extinct, doctrine as to, as affecting validity of title, 98 A.L.R.2d 1285.

Marketability of title as affected by lien dischargeable only out of funds to be received from purchaser at closing, 53 A.L.R.3d 678.

Preexisting Royalty Interest.

Where an energy company took an interest in oil wells with knowledge of an overriding royalty interest, it was not a good faith purchaser for value; accordingly, the overriding interest could be specifically enforced. Geostar Corp. v. Parkway Petroleum, 495 N.W.2d 61, 1993 N.D. LEXIS 12 (N.D. 1993).

Purchaser in Good Faith.

An obligation regarding real property may be enforced against a subsequent purchaser, except a purchaser in good faith for value. Stuart v. Stammen, 1999 ND 38, 590 N.W.2d 224, 1999 N.D. LEXIS 39 (N.D. 1999).

Farmland purchaser who had actual knowledge that a third party held a right of first refusal to purchase the property, and made no inquiry as to whether the other party wanted to exercise his right, was not a good faith purchaser. Stuart v. Stammen, 1999 ND 38, 590 N.W.2d 224, 1999 N.D. LEXIS 39 (N.D. 1999).

Collateral References.

Specific Performance 18-24.

71 Am. Jur. 2d, Specific Performance, §§ 190, 191.

81 C.J.S. Specific Performance, §§ 22-26.

Parties to action for specific performance of contract for conveyance of realty after death of party to the contract, 43 A.L.R.2d 938.

Burden of Proof.

Burden of proof rests on the party who seeks reformation on the basis of mutual mistake to establish such mutual mistake by clear, satisfactory, specific and convincing evidence. Ell v. Ell, 295 N.W.2d 143, 1980 N.D. LEXIS 276 (N.D. 1980).

Party seeking reformation has burden of proving that written instrument does not accurately state what parties intended with evidence that is clear, satisfactory, specific, and convincing that there was a mutual mistake of fact. Wehner v. Schroeder, 354 N.W.2d 674, 1984 N.D. LEXIS 362 (N.D. 1984).

Reformation or Rescission.

District court did not err in applying the statute because any error in deciding corporations’ failed to prove a reformation claim that could have been included in the complaint and was abandoned was harmless; the complaint requested reformation of a plat or reformation of redemption agreements, and at trial, the corporations’ stated they were not asking to reform a contract and not claiming the redemption agreements were invalid but were only trying to determine what a partnership owned. Galvanizers, Inc. v. Kautzman, 2021 ND 169, 965 N.W.2d 51, 2021 N.D. LEXIS 172 (N.D. 2021).

Consequences of Mistake.

When taxpayer’s retirement contracts were mistakenly used as collateral for a personal loan, the amounts used to pay the loan were taxed as income; taxpayer, who did not challenge the mistake or address the loan agreement 13 years earlier, could not avoid its later consequences. 277 F. Supp. 2d 1040.

Failure to Read Instrument Before Signing.

Grantors’ failure to read warranty deed prepared by an attorney before signing it did not bar them from being granted reformation to correct erroneous omission of a mineral reservation from deed where grantors’ negligence in failing to read deed did not constitute a failure to act in good faith or in accordance with reasonable standards of fair dealing. Wehner v. Schroeder, 354 N.W.2d 674, 1984 N.D. LEXIS 362 (N.D. 1984).

Good Faith Purchaser.

Party was not a good faith purchaser for value of real property, where it was put on notice about serious questions as to status of property’s title by recorded documents. City of Fargo v. D.T.L. Props., 1997 ND 109, 564 N.W.2d 274, 1997 N.D. LEXIS 103 (N.D. 1997).

Trial court erred in awarding summary judgment to plaintiff in a quiet title action against defendants because defendants did not have constructive notice of a mistake in a 1992 deed that resulted in a discrepancy in the placement of a legal boundary between the parties’ parcels of land; defendants were good faith purchasers. Farmers Union Oil Co. v. Smetana, 2009 ND 74, 764 N.W.2d 665, 2009 N.D. LEXIS 81 (N.D. 2009).

In a dispute over an oil and gas lease, it was error for a trial court to grant summary judgment upon concluding, as a matter of law, that an individual was not a bona fide purchaser, due to having constructive notice of another’s claim when recording the lease, because (1) whether the individual had notice was a question of fact, (2) deciding an issue on summary judgment was not appropriate if the court had to draw inferences or make findings on disputed facts, (3) although two corporations argued the facts were not disputed, the corporations did not agree on the inferences that could be drawn from the evidence, (4) more than one inference could reasonably be drawn from the evidence and findings of fact were required, which was not appropriate in a summary judgment proceeding, (5) whether the individual acquired property rights in good faith and for value required findings of fact about the events surrounding a transaction, and (6) a factual dispute existed about whether the individual had constructive notice when the individual acquired rights under the lease. Northern Oil & Gas, Inc. v. Creighton, 2013 ND 73, 830 N.W.2d 556, 2013 N.D. LEXIS 73 (N.D. 2013).

Mistake.

District court properly found a mutual mistake in transferring the mineral estate given, inter alia, the trust agreement's statement that the property was to be divided equally between the son and his sibling. Dixon v. Dixon, 2017 ND 174, 898 N.W.2d 706, 2017 N.D. LEXIS 175 (N.D. 2017).

In General.

Two companies that acquired oil and gas interests that belonged to a third company (“debtor”) while the debtor was in Chapter 7 bankruptcy were not barred by N.D.C.C. § 28-01-15 from seeking reformation of documents that transferred the debtor's interests because they discovered the fact that there were problems with the documents less than ten years before they sought reformation, and the court was allowed under N.D.C.C. § 9-06-07 to consider extrinsic evidence to determine the intent of the bankruptcy trustee when he sold the debtor's property, and to order reformation of the documents pursuant to N.D.C.C. § 32-04-17 to the extent they did not accurately convey interests the trustee intended to sell. 2015 Bankr. LEXIS 883.

—In General.

N.D.C.C. § 9-03-13 defines mistake for purposes of this section. Mau v. Schwan, 460 N.W.2d 131, 1990 N.D. LEXIS 180 (N.D. 1990).

In a case in which a purchaser sued sellers for reformation of a warranty deed under N.D.C.C. § 32-04-17, the trial court did not err in granting the sellers summary judgment on the purchaser’s claim for reformation based upon mistake; the written deed conformed to the sellers’ version of the facts and did not support a claim that both parties intended to say something different from what was said in the deed. Heart River Partners v. Goetzfried, 2005 ND 149, 703 N.W.2d 330, 2005 N.D. LEXIS 186 (N.D. 2005).

District court properly focused on the decedent’s intent when he executed the quitclaim deed rather than the intent of the parties to the contract for deed, and because the decedent did not include a reservation of mineral interests in the deed, the law required the district court to presume that was his intention; the son did not prove by clear and convincing evidence that a mutual mistake caused the decedent to execute the deed without the reservation of mineral interests. Spitzer v. Bartelson, 2009 ND 179, 773 N.W.2d 798, 2009 N.D. LEXIS 191 (N.D. 2009).

—Of Law.

Where a mistake of law results in the parties’ obvious failure to articulate their true and discoverable intent, reformation is available if justice and common sense require it; however, not all mistakes of law will justify reformation of a contract as ignorance of law must be distinguished, from misapprehension of law with which both parties are familiar. Hovden v. Lind, 301 N.W.2d 374, 1981 N.D. LEXIS 262 (N.D. 1981).

Dismissal of a grantor’s complaint seeking reformation of a deed was appropriate because a reservation in the deed expressly providing the grantor with the right to hunt on any or all the premises was a severance of hunting rights from the surface rights that was prohibited by statute. Furthermore, the complaint clearly alleged a mistake of law in the context of ignorance of the law, not a misapprehension of the law, for which the remedy of reformation was not available as a matter of law. Hauer v. Zerr, 2020 ND 16, 937 N.W.2d 508, 2020 N.D. LEXIS 17 (N.D. 2020).

—Unilateral.

A plaintiff failed to support a unilateral mistake under this section because there was no misrepresentation by defendant and because defendant had no prior knowledge of the mistake claimed by plaintiff. Mau v. Schwan, 460 N.W.2d 131, 1990 N.D. LEXIS 180 (N.D. 1990).

Parol Evidence.

Parol evidence is admissible in an action for reformation of a contract to establish fraud or mutual mistake as well as to show the true intentions of the parties. Ell v. Ell, 295 N.W.2d 143, 1980 N.D. LEXIS 276 (N.D. 1980).

In a reformation action, any parol evidence which tends to show a mistake or the parties’ true intent is admissible. City of Fargo v. D.T.L. Props., 1997 ND 109, 564 N.W.2d 274, 1997 N.D. LEXIS 103 (N.D. 1997).

Summary judgment was not appropriate on the grantors’ claim for reformation of a deed as there was parol evidence supporting the inference that a mistake was made; the deed was signed when the flowage easement had not yet been recorded, a mistake the grantee knew about, and there was also evidence that the grantee had told his real estate agent not to say anything about the flowage easement during the closing. Anderson v. Selby, 2005 ND 126, 700 N.W.2d 696, 2005 N.D. LEXIS 162 (N.D. 2005).

District court properly quieted title in favor of appellees because it did not err in considering extrinsic evidence to determine whether there was a mutual mistake. Goodall v. Monson, 2017 ND 92, 893 N.W.2d 774, 2017 N.D. LEXIS 93 (N.D. 2017).

Parties to Action.

Reformation of a written instrument is allowed as against original parties to instrument and all those who claim under said parties in privity, with exception of bona fide purchasers or encumbrancers for value and without notice. Wehner v. Schroeder, 354 N.W.2d 674, 1984 N.D. LEXIS 362 (N.D. 1984).

Pleaded Specifically.

Facts establishing fraud or mistake upon which reformation might be based must be specifically pleaded. Evangelical Lutheran Church v. Stanolind Oil & Gas Co., 251 F.2d 412, 1958 U.S. App. LEXIS 5386 (8th Cir. N.D. 1958).

Purchaser with Constructive Notice of Claim.

Purchaser of property had constructive notice of possible claim by plaintiff regarding mineral interests, and was therefore not a good faith purchaser for value, where a search of title abstract should have disclosed discrepancy over mineral interests between a recorded contract for deed and a recorded warranty deed; therefore, good faith purchaser provision of this section did not bar plaintiff from seeking reformation of recorded instruments. Wehner v. Schroeder, 335 N.W.2d 563, 1983 N.D. LEXIS 340 (N.D. 1983).

—Question of Fact.

A factual dispute existed as to whether partners in partnership had notice of facts which would provoke a prudent person to make further inquiry about its rent obligation under ground lease purchased by partnership, so that district court erred in concluding, as a matter of law, that partnership had constructive notice of the mutual mistake in lease and, therefore, was not a good faith purchaser. Diocese of Bismarck Trust v. Ramada, Inc., 553 N.W.2d 760, 1996 N.D. LEXIS 214 (N.D. 1996).

Reformation or Rescission.

Where a mistake is made in a contract, equity will either reform or rescind the contract as circumstances may require. Benesh v. Travelers' Ins. Co., 14 N.D. 39, 103 N.W. 405, 1905 N.D. LEXIS 17 (N.D. 1905).

While fraud is a ground for reformation of written instruments, fraud perpetrated to induce a party to enter into the agreement itself is not a ground for its reformation, but is a ground for its rescission. Striegel v. Dakota Hills, 365 N.W.2d 491, 1985 N.D. LEXIS 282 (N.D. 1985).

The trial court had no authority to order reamortization of the loan under the guise of reformation, especially where the borrower had not asserted any grounds to support reformation of a written instrument. Federal Land Bank v. Overboe, 404 N.W.2d 445, 1987 N.D. LEXIS 296 (N.D. 1987).

A ten-acre shortfall in a deed was a disadvantage to defendant, not an advantage; therefore, it was not the kind of mistake which warranted reformation for plaintiff, the grantor, as “a party aggrieved.” Mau v. Schwan, 460 N.W.2d 131, 1990 N.D. LEXIS 180 (N.D. 1990).

Where party affirmed contract and continued to rely on some of its provisions, his counterclaim for fraud was properly dismissed by summary judgment, because fraud perpetrated to induce a party to enter into the agreement is not a ground for its reformation, but is a ground for rescission, and the party did not seek rescission. Earthworks v. Sehn, 553 N.W.2d 490, 1996 N.D. LEXIS 205 (N.D. 1996).

District court properly granted summary judgment under Fed.R.Civ.P. 56 in favor of the United States in a taxpayer’s action seeking a refund of taxes paid in response to the Internal Revenue Service’s (IRS) assessment of a tax underpayment under 26 USCS § 72(p)(1); although the taxpayer claimed that a collateral assignment of annuity contracts was void because it was the product of mutual mistake on behalf of the taxpayer and a bank, the IRS properly treated the assignment as a taxable event based on the realities of the transaction; the taxpayer never challenged the legality of the assignment through proceedings authorized by N.D.C.C. §§ 32-04-17 to 32-04-22, and the taxpayer enjoyed the benefits of using the assignment as collateral for a loan. 366 F.3d 622.

District court did not abuse its discretion in concluding that the relatives’ proposed amended complaint for reformation was futile, N.D.R.Civ.P. 15(a), as they did not present sufficient evidence to support a reformation claim, N.D.C.C. § 32-04-17; the heirs’ summary judgment motion was properly granted as the relatives failed to demonstrate the existence of a disputed material fact. Johnson v. Hovland, 2011 ND 64, 795 N.W.2d 294, 2011 N.D. LEXIS 44 (N.D. 2011).

When appellant grantors claimed an interest in scoria under the reservation language in a warranty deed, the district court did not abuse its discretion in denying appellants’ motion to amend their complaint to assert a cause of action for reformation of the warranty deed under N.D.C.C. § 32-04-17 because the proposed amendment would be futile. Appellants failed to provide substantial evidence of the parties’ mutual intention to reserve interest in scoria. George v. Veeder, 2012 ND 186, 820 N.W.2d 731, 2012 N.D. LEXIS 189 (N.D. 2012).

District court did not err in granting summary judgment dismissing the relatives’ counterclaim for reformation and in quieting title to the minerals in the family; the proof offered by the relatives in support of their reformation claim fell short of the clear, satisfactory, specific and convincing evidence they needed in order to show that the parties to the documents in question intended to say something different from what was actually said in those documents. Arndt v. Maki, 2012 ND 55, 813 N.W.2d 564, 2012 N.D. LEXIS 53 (N.D. 2012).

District court did not err in reforming a warranty deed under and quieting title in the disputed land to the buyers because, while the original owner testified she did not intend to convey land below the water's edge of a lake to the intervening owners, circumstantial evidence in the record--including listing agreements, advertisements, and the testimony of the property surveyor and the attorney who drafted the deeds--supported a contrary finding. Freidig v. Weed, 2015 ND 215, 868 N.W.2d 546, 2015 N.D. LEXIS 223 (N.D. 2015).

District court did not err in determining the ownership of the property at issue because its findings that an estate's failed to meet its burden of proving fraud or mistake were not clearly erroneous where the primary purpose of the estate's action was to reform a deed and determine ownership of property the estate alleged it owned, the statute of limitations was not applicable to the estate's quiet title and reformation claim, the estate's appellate brief did not attack the district court's findings of fact on fraud, and the evidence did not establish whether the son and the father's estate intended to change the personal representative's deed or whether the deed was fraudulently or mistakenly altered. Vaage v. State (In re Estate of Vaage), 2016 ND 32, 875 N.W.2d 527, 2016 N.D. LEXIS 22 (N.D. 2016).

District court properly reformed the mineral deed naming only one brother as the grantee where it credited the non-named brother's testimony that a mutual mistake was made, and the deed's reference to joint tenants when only one grantee was named was an obvious error that put the purchasers on inquiry under N.D.C.C. § 1-01-25, thereby depriving them of good faith purchaser status. Fredericks v. Fredericks, 2016 ND 234, 888 N.W.2d 177, 2016 N.D. LEXIS 235 (N.D. 2016).

District court's findings supporting reformation of a deed were not clearly erroneous because there was clear evidence the grantors intended to transfer 508.26 mineral acres rather than the fractional interest as shown on the deed; the contract and receipt received as evidence contained language to show that the intent of parties to the contract was to transfer “an undivided 508.26 mineral acres” in the real estate later described in the deed. Goodall v. Monson, 2017 ND 92, 893 N.W.2d 774, 2017 N.D. LEXIS 93 (N.D. 2017).

District court did not err in denying a rural water district reformation of two leases on land because there was no mutual mistake in the drafting of leases; the parties engaged in a mutually negotiated, arms-length, commercial transaction, and the district court weighed the evidence, found the commercial lease contracts clear and unambiguous, and found the district did not meet its burden of clear and convincing evidence for reformation. Motter v. Traill Rural Water Dist., 2017 ND 267, 903 N.W.2d 725, 2017 N.D. LEXIS 276 (N.D. 2017).

In an appeal from a judgment dismissing plaintiffs’ action to reform warranty deeds and quiet title in themselves to certain property, the Supreme Court could not determine whether the district court correctly applied the law. In the absence of any correct statement of how the law applied to this case, the Supreme Court was compelled to remand the case to the district court. Schindler v. Wageman, 2019 ND 41, 923 N.W.2d 507, 2019 N.D. LEXIS 49 (N.D. 2019).

Settlement Agreement

Trial court did not abuse its discretion in refusing to reform parties’ settlement agreement in a class action suit because the calculation of the award, and the inclusion of a specific number in the denominator of the settlement formula used to determine payments to individual claimants signaled intense negotiations and was deliberate, not a mistake; the number used in the calculations was based on the best information available at the time and the parties’ correspondence evidenced their knowledge that the number was an approximation and could be higher or lower than what was inserted in the formula. Ritter, Laber & Assocs. v. Koch Oil, Inc., 2007 ND 163, 740 N.W.2d 67, 2007 N.D. LEXIS 168 (N.D. 2007).

Statute of Limitations.

A reformation of contract action on the basis of mutual mistake accrues, and the statute of limitations begins to run, not at the time the instrument in question is executed, but at the time the facts which constitute the mistake and form the basis for reformation have been, or in the exercise of reasonable diligence should have been, discovered by the party applying for relief. Ell v. Ell, 295 N.W.2d 143, 1980 N.D. LEXIS 276 (N.D. 1980).

Collateral References.

Reformation of Instruments 15-21.

66 Am. Jur. 2d, Reformation of Instruments, §§ 11-27.

76 C.J.S. Reformation of Instruments, §§ 28-46.

Statute of limitations governing action to reform instrument, 36 A.L.R.2d 687.

Third persons, right to reformation of contract or instrument as affected by intervening rights of, 79 A.L.R.2d 1180.

Negligence in executing contract as affecting right to have it reformed, 81 A.L.R.2d 7.

Fraud.

The specific relief of rescission of a written contract may be adjudged if the consent of the party rescinding was obtained through fraud, provided that he acts promptly upon discovering the facts which entitle him to rescind, if he is free from duress, menace, undue influence, or disability and is aware of his right to rescind. Lanz v. Naddy, 82 N.W.2d 809, 1957 N.D. LEXIS 119 (N.D. 1957).

Where the vice president of the bank fraudulently induced a debtor to enter into a $250,000 loan by making false statements, the district court did not abuse its discretion in granting the debtor equitable rescission of the loan under N.D.C.C. § 32-04-21. The bank could not look to the debtor for repayment of the loan, because he neither received the loan proceeds nor received the promised collateral for the obligation. Am. Bank Ctr. v. Wiest, 2010 ND 251, 793 N.W.2d 172, 2010 N.D. LEXIS 255 (N.D. 2010).

Jury Trial.

A rescission action under N.D.C.C. §§ 32-04-21 through 32-04-23 is a suit in equity, for which a trial by jury is not available. Therefore, an action by house purchaser seeking to cancel the contract based on the seller’s fraudulent misrepresentations as to the house’s structural integrity and water problems was equitable in nature and trial judge did not err in denying plaintiff’s motion for a jury trial. Barker v. Ness, 1998 ND 223, 587 N.W.2d 183, 1998 N.D. LEXIS 228 (N.D. 1998).

Where property owners seeking to rescind real estate sales contract on the basis of fraud made no offer to restore the purchase price before intervening in a partition action pertaining to the property, the claim was an equitable one, and thus the claimants had no right to a jury trial. Murphy v. Murphy, 1999 ND 118, 595 N.W.2d 571, 1999 N.D. LEXIS 110 (N.D. 1999).

Misdescription of Land.

Where a contract describes more land than was intended to be included therein, equity will rescind or reform the contract. Benesh v. Travelers' Ins. Co., 14 N.D. 39, 103 N.W. 405, 1905 N.D. LEXIS 17 (N.D. 1905).

Mistake of Fact.

In a contract action based on the sale of a vintage car, when the trial court concluded that the parties’ consent to the agreement was given under a material mistake of fact about the engine and ordered the parties restored to their pre-contractual position, the court effectively granted the parties equitable rescission of the contract. Romanyshyn v. Fredericks, 1999 ND 128, 597 N.W.2d 420, 1999 N.D. LEXIS 148 (N.D. 1999).

Mistake of Law.

Vendor was not entitled to rescind land sale contract with mineral reservation on the basis of lack of free and informed consent due to a mistake of law concerning the procedure to reserve the minerals where the mistake of law did not affect the substance of the vendor’s consent to the contract, but simply frustrated his attempt to reserve all minerals. Hovden v. Lind, 301 N.W.2d 374, 1981 N.D. LEXIS 262 (N.D. 1981).

Public Utilities.

Plaintiff, a customer for steam heat service, stated a cause of action for rescission of heating contract under subsection 2 of this section where his complaint clearly alleged the payment of money in innocent and mistaken reliance upon an unlawful contract, that plaintiff was not equally in the wrong with the defendant, and that the contract was unlawful for causes which were not apparent upon its face. Lyons v. Otter Tail Power Co., 70 N.D. 681, 297 N.W. 691, 1941 N.D. LEXIS 217 (N.D. 1941).

Collateral References.

Contracts 249-274.

17A Am. Jur. 2d, Contracts, §§ 524 et seq.

17A C.J.S. Contracts, §§ 456-499.

Contracting party’s right of redress for fraud as affected by his own breach of the contract before discovering the fraud, 13 A.L.R.2d 1248.

False representations as to income, profits, or productivity of property as fraud, 27 A.L.R.2d 14.

What constitutes reservation of right to rescind contract, as against third party beneficiary, 44 A.L.R.2d 1270.

Conflict of laws in determining whether facts and circumstances operate to terminate, breach, rescind, or repudiate a contract, 50 A.L.R.2d 254.

Executors: asserted right to rescission or cancellation of contract with decedent as claim which must be presented to his personal representative, 73 A.L.R.2d 883.

Mutual rescission or release of contract as affecting rights of third-party beneficiary, 97 A.L.R.2d 1262.

Comment Note.—Amount of attorneys’ compensation in absence of contract or statute fixing amount, 57 A.L.R.3d 475.

Amount of attorneys’ compensation in matters involving guardianship and trusts, 57 A.L.R.3d 550.

Amount of attorneys’ fees in tort actions, 57 A.L.R.3d 584.

Amount of attorneys’ compensation in proceedings involving wills and administration of decedents’ estates, 58 A.L.R.3d 317.

Excessiveness or adequacy of attorneys’ fees in matters involving real estate—modern cases, 10 A.L.R.5th 448.

Excessiveness or adequacy of attorneys’ fees in domestic relations cases, 17 A.L.R.5th 366.

Excessiveness or inadequacy of attorneys fees in matters involving commercial and general business activities, 23 A.L.R.5th 241.

Calculations of attorneys’ fees under Federal Tort Claims Act—28 USCS sec. 2678, 86 A.L.R. Fed. 866.

Determination of Amount.

The court has the power to determine the amount which is owing or which must be paid by way of compensation by one who maintains an action for cancellation of a contract to the one against whom it is brought. Donovan v. Dickson, 37 N.D. 404, 164 N.W. 27, 1917 N.D. LEXIS 114 (N.D. 1917).

Improvements on Land.

Where specific performance was denied and the contract was canceled by the court, reimbursement should be made for the money expended in improvements upon the land in reliance upon the contract, at least to the extent of the increased value of the land resulting from the improvements. Sand v. Red River Nat'l Bank & Trust Co., 224 N.W.2d 375, 1974 N.D. LEXIS 132 (N.D. 1974).

No Compensation Required.

Where the vice president of the bank fraudulently induced a debtor to enter into a $250,000 loan by making false statements, the district court did not abuse its discretion in granting the debtor equitable rescission of the loan under N.D.C.C. § 32-04-23. The bank could not look to the debtor for repayment of the loan, because he neither received the loan proceeds nor received the promised collateral for the obligation. Am. Bank Ctr. v. Wiest, 2010 ND 251, 793 N.W.2d 172, 2010 N.D. LEXIS 255 (N.D. 2010).

Return to Precontractual Position.

The principle that both parties must be restored to their pre-contractual positions applies to equitable rescission actions. Therefore, in an equitable rescission action to cancel contract for purchase of house, trial court did not err in ordering purchaser to remit to the seller the rental income derived from the house. Barker v. Ness, 1998 ND 223, 587 N.W.2d 183, 1998 N.D. LEXIS 228 (N.D. 1998).

Cloud upon Title.

A complaint to remove a cloud from plaintiff’s title and cancel a fraudulent deed should describe the deed in such a manner that it can be identified for cancellation by the officer of the court. Nation v. Cameron, 11 N.W. 525, 2 Dakota 347, 1880 Dakota LEXIS 11 (Dakota 1880).

An instrument is not a cloud upon a title if its invalidity appears on its face. Morris v. McKnight, 1 N.D. 266, 47 N.W. 375, 1890 N.D. LEXIS 34 (N.D. 1890).

Denial of Specific Performance.

A denial of specific performance means the contract will not be enforced in equity, but cancellation or rescission of the contract simultaneously with denial of specific performance means that it will not be enforced in equity or in law; the standard for granting cancellation is more strict than that for denying specific performance. Sand v. Red River Nat'l Bank & Trust Co., 224 N.W.2d 375, 1974 N.D. LEXIS 132 (N.D. 1974).

Lis Pendens.

Because defendant's complaint in tribal court was not one affecting the title to real property, as it sought only a money judgment, and a lis pendens for that action was not entitled to be recorded, the court concluded that the improperly recorded lis pendens was subject to cancellation under this section, and therefore the district court erred by dismissing plaintiff's application to cancel the lis pendens. Conrad v. Wilkinson, 2017 ND 212, 901 N.W.2d 348, 2017 N.D. LEXIS 214 (N.D. 2017).

Collateral References.

Vendor’s obligation to disclose to purchaser of land presence of contamination from hazardous substances or wastes, 12 A.L.R.5th 630.

In General.

Equity has no jurisdiction to restrain the commission of crimes, and an injunction may not issue for the prevention of criminal acts unconnected with violation of legal rights. Fargo Women's Health Org. v. Lambs of Christ, 488 N.W.2d 401, 1992 N.D. LEXIS 183 (N.D. 1992).

Interference with Legal Rights.

When the acts sought to be enjoined interfere with legal rights, the court’s power to issue an injunction is not destroyed because the acts are punishable as a crime. In such a case, the equitable powers of the court are not put forth to enjoin the commission of a crime, although that may incidentally result; they are put forth to protect legal rights against invasion by acts which, if committed, would cause injury for which the ordinary remedies at law would not afford adequate relief. Fargo Women's Health Org. v. Lambs of Christ, 488 N.W.2d 401, 1992 N.D. LEXIS 183 (N.D. 1992).

Small Loan Business.

State may enjoin conduct of a usurious small loan business to prevent acts injurious to the public welfare where the remedy at law or by criminal prosecution would be inadequate. State ex rel. Burgum v. Hooker, 87 N.W.2d 337, 1957 N.D. LEXIS 182 (N.D. 1957).

Collateral References.

Injunction 102, 105.

42 Am. Jur. 2d, Injunctions, §§ 175 et seq.

43A C.J.S. Injunctions, §§ 276-278.

Official oppression, injunction against acts constituting offense of, 83 A.L.R.2d 1007, 1016.

Validity, construction, and effect of “Sunday closing” or “blue” laws—modern status, 10 A.L.R.4th 246.

Damages Inadequate Remedy.

This section, authorizes a final injunction to prevent the breach of an obligation when damages are insufficient to afford adequate relief. Farm Credit Bank v. Brakke, 483 N.W.2d 167, 1992 N.D. LEXIS 69 (N.D. 1992).

Disputed Terms of Sale.

Court had no authority, by an injunction, to take from defendant property clearly his, and to which he held title, because there was a dispute between the parties as to the fulfillment of the terms of the contract of sale. FARMERS UNION OIL CO. v. KILGORE, 71 N.D. 199, 299 N.W. 318, 1941 N.D. LEXIS 154 (N.D. 1941).

Employee Soliciting Employer’s Clients.

Accounting firm was entitled to injunctive relief to prevent former employee from performing any audit or other accounting or booking services and from accepting any compensation for such services from the firm’s clients where the former employee had solicited the firm’s clients for his own behalf while he was still employed with the firm and before quitting the firm to start his own accounting business. Biever, Drees & Nordell v. Coutts, 305 N.W.2d 33, 1981 N.D. LEXIS 267 (N.D. 1981).

Injunctive Relief.

—Improper.

Where a hospital followed its bylaws, which authorized an interim suspension of a doctor’s privileges during an investigation upon the executive committee finding it was necessary to prevent potential harm to patients, the trial court abused its discretion when it enjoined the suspension. Magrinat v. Trinity Hosp., 540 N.W.2d 625, 1995 N.D. LEXIS 229 (N.D. 1995).

Peaceable Use of Real Property.

Injunctive relief is appropriate to prevent a threatened disturbance in the peaceable use, enjoyment, and possession of real property. Farm Credit Bank v. Brakke, 483 N.W.2d 167, 1992 N.D. LEXIS 69 (N.D. 1992).

Preventive Relief.

Preventive relief may be given by injunction when pecuniary compensation is not an adequate remedy; when it would be extremely difficult to ascertain the amount of compensation; when restraint is necessary to prevent a multiplicity of suits. Strobeck v. McWilliams, 42 N.D. 30, 171 N.W. 865, 1919 N.D. LEXIS 115 (N.D. 1919); Northern Pac. Ry. v. Northern Reo Co., 64 N.D. 68, 250 N.W. 329 (1934).

In an action by the purchaser for preventive relief by injunction, to restrain a seller from doing that which ought not to be done, viz., a wrongful interference with the possession, use, and enjoyment of property contracted for, it is not material whether the legal title to the goods is retained by the seller. Mevorah v. Goodman, 65 N.W.2d 278, 1954 N.D. LEXIS 85, 1954 N.D. LEXIS 86 (N.D. 1954).

Where a remedy for damages would be insufficient because it would be extremely difficult to ascertain the amount that would afford adequate relief, this section authorizes a final injunction. Gunsch v. Gunsch, 69 N.W.2d 739, 1954 N.D. LEXIS 121, 1955 N.D. LEXIS 101 (N.D. 1954).

Trespass.

A court of equity will protect the rightful claimant’s right to possession against a trespasser, and when he has established his legal right and the fact of its violation, the rightful claimant is in general entitled to final injunction to prevent the recurrence of the trespass. Gunsch v. Gunsch, 69 N.W.2d 739, 1954 N.D. LEXIS 121, 1955 N.D. LEXIS 101 (N.D. 1954).

Trust Obligation.

A final injunction may be granted to prevent the breach of an obligation existing in favor of the applicant when the obligation arises from a trust. Mevorah v. Goodman, 65 N.W.2d 278, 1954 N.D. LEXIS 85, 1954 N.D. LEXIS 86 (N.D. 1954).

Collateral References.

Injunction 14-19, 189, 190.

42 Am. Jur. 2d, Injunctions, §§ 12 et seq.

43 C.J.S. Injunctions, §§ 27, 33, 48-68.

Elections: canvassing votes and declaring result of election, power to enjoin, 1 A.L.R.2d 588.

Custody of child: removal of child from state in violation of injunction order as affecting jurisdiction of courts of another state to award custody, 4 A.L.R.2d 7.

Injunction by state court against action in court of another state, 6 A.L.R.2d 896.

Public utility rates, adequacy, as regards right to injunction, of other remedy for review of order fixing, 8 A.L.R.2d 839.

Liquidated damages, provision for, in contract for cooperative marketing of farm products as affecting right to injunction, 12 A.L.R.2d 130.

Unemployment compensation: declaratory relief with respect to unemployment compensation as within statute forbidding injunctive relief, 14 A.L.R.2d 826.

Contract, right to injunction against inducing breach of, as affected by remedy at law, 26 A.L.R.2d 1227.

Breach of contract: injunction against procuring breach of contract as affected by remedy at law, 26 A.L.R.2d 1227.

Encroachments by adjoining landowner, mandatory injunction to compel removal of, 28 A.L.R.2d 679.

Labor relations: state’s power to enjoin violation of collective labor contract as affected by federal labor relations acts, 32 A.L.R.2d 829.

Public officer, injunction as remedy against removal of, 34 A.L.R.2d 554.

Zoning regulations, remedies to compel municipal officials to enforce, 35 A.L.R.2d 1135, 1136.

Parking vehicles on private way, injunction against, 37 A.L.R.2d 944.

Business names: injunction to prevent use of one’s own name for business purposes to detriment of another using the same or a similar name, in absence of self-imposed restraint, 44 A.L.R.2d 1156.

Defamation: injunction as remedy against defamation of person as affected by legal remedy, 47 A.L.R.2d 715, 724.

Insurance injunction to prevent insurer from settling suit against wrongdoer to detriment of insurer, 51 A.L.R.2d 697, 726.

Other state or country, injunction against enforcement of judgment of, 54 A.L.R.2d 1240.

Water rights: injunction as affected by relative riparian or littoral rights respecting the removal of waters from a natural, private, nonnavigable lake, 54 A.L.R.2d 1450.

Fishing, boating, bathing, or the like in inland lakes, injunction as remedy with respect to rights of, 57 A.L.R.2d 569, 590.

Trespass: injunction against repeated or continuing trespass on ground of adequacy of legal remedy, 60 A.L.R.2d 310.

Trade secrets: wording injunction in terms avoiding disclosure of trade secret or the like, 62 A.L.R.2d 509, 530.

Copyright of telephone directory, injunction against infringement of, 63 A.L.R.2d 1096, 1103.

Taxation: financial hardship or inability to pay tax as rendering inapplicable statute denying remedy by injunction against assessment or collection of tax, 65 A.L.R.2d 550.

Arbitration: injunction against arbitration proceedings, prior to award, on ground of interest, bias, prejudice, collusion, or fraud, 65 A.L.R.2d 755, 757.

Sewerage connection, right of private sewerage system owner to mandatory injunction for removal of unauthorized, 76 A.L.R.2d 1329.

Timber: injunction to prevent interference with operations under standing tree contract providing that trees to be cut and order of cutting shall be selected by seller, 79 A.L.R.2d 1243.

Usury: practice of exacting usury as ground for injunction, 83 A.L.R.2d 848.

Crops: injunctive relief as to contract between grower of vegetable or fruit crops and purchasing processor, packer, or canner, 87 A.L.R.2d 732, 779.

Eminent domain, denial of injunction against exercise of power of, because of adequate remedy at law, 93 A.L.R.2d 465.

Absentee Voters’ Laws, injunction proceedings under, 97 A.L.R.2d 257.

Infant’s employment contract, enforceability of covenant not to compete in, 17 A.L.R.3d 863.

Trade secrets: propriety of permanently enjoining one guilty of unauthorized use of trade secret from engaging in sale or manufacture of device in question, 38 A.L.R.3d 572.

Diversion of water: propriety of injunctive relief against diversion of water by municipal corporation or public utility, 42 A.L.R.3d 426.

Pollution control: preliminary mandatory injunction to prevent, correct, or reduce effects of polluting practices, 49 A.L.R.3d 1239.

Use of “family name” by corporation as unfair competition, 72 A.L.R.3d 8.

Liability for interference with invalid or unenforceable contract, 96 A.L.R.3d 1294.

Punitive damages for interference with contract or business relationship, 44 A.L.R.4th 1078.

Applicability of statute of limitations or doctrine of laches to proceeding to revoke or suspend license to preactice medicine, 51 A.L.R.4th 1147.

Encroachment of trees, shrubbery, or other vegetation across boundary line, 65 A.L.R.4th 603.

Law Reviews.

Summary of North Dakota Supreme Court decisions on Appeal and Error, 72 N.D. L. Rev. 768 (1996).

Breach of Contract.

A final injunction, when authorized, may be granted to restrain the breach of a contract, unless it is one the performance of which could not be specifically enforced. Mevorah v. Goodman, 65 N.W.2d 278, 1954 N.D. LEXIS 85, 1954 N.D. LEXIS 86 (N.D. 1954).

Officers of the Law.

The term “officers of the law” is synonymous with “peace officers”. Bartels N. Oil Co. v. Jackman, 29 N.D. 236, 150 N.W. 576, 1915 N.D. LEXIS 7 (N.D. 1915).

Public Officers.

The district court may entertain jurisdiction of an action to enjoin the pure food commissioner from destroying plaintiff’s business. State ex rel. Ladd v. District Court, 17 N.D. 285, 115 N.W. 675, 1908 N.D. LEXIS 28 (N.D. 1908).

Issuance in taxpayers’ suit of restraining order to enjoin state treasurer from depositing state funds, and funds of state institutions, in the Bank of North Dakota was error. State ex rel. Lemke v. District Court, 49 N.D. 27, 186 N.W. 381, 1921 N.D. LEXIS 133 (N.D. 1921).

Injunctional order enjoining state officials from enforcing criminal judgment was erroneous. State ex rel. Shafer v. Lowe, 54 N.D. 637, 210 N.W. 501, 1926 N.D. LEXIS 72 (N.D. 1926), overruled in part, Bulman v. Hulstrand Constr. Co., 521 N.W.2d 632, 1994 N.D. LEXIS 202 (N.D. 1994).

Sale of Public Utility.

Where defendant owner and operator of an electric plant sold plant to plaintiff pursuant to agreement, delivering a bill of sale with warranty upon plaintiff’s payment of agreed purchase price, but the defendant failed to obtain authorization from the public service commission, the trial court properly enjoined defendant from interfering with plaintiff’s possession of the property. Otter Tail Power Co. v. Clark, 59 N.D. 320, 229 N.W. 915, 1930 N.D. LEXIS 145 (N.D. 1930).

Success on Merits.

In a case where injunctive relief was sought after the closing of a housing facility, there was no likelihood of success on the merits because argument that the decision was not rational addressed the wisdom and propriety of the legislative decision, and it was not shown why an appeal to the district court was not an adequate legal remedy to resolve this claim. Black Gold OilField Servs., LLC v. City of Williston, 2016 ND 30, 875 N.W.2d 515, 2016 N.D. LEXIS 35 (N.D. 2016).

Teacher’s Employment Contract.

Teacher employed by a private institution has no right to specific enforcement or injunctive relief to obtain reinstatement of her teaching position for alleged wrongful termination or to prevent a breach of her employment contract. Schauer v. Jamestown College, 323 N.W.2d 114, 1982 N.D. LEXIS 369 (N.D. 1982).

Zoning.

Declaratory and injunctive relief are appropriate if a municipality fails to comply with the statutory procedures for annexation and zoning, but may not be used to test the wisdom of an annexation or zoning decision, which is a legislative act. Frey v. City of Jamestown, 548 N.W.2d 784, 1996 N.D. LEXIS 157 (N.D. 1996).

In challenging a city’s decision to reject his petition for rezoning and annexation of his property, property owner argued that the city should have given greater credence to its comprehensive development plan and that the city gave too much credence to the complaints and concerns of area residents in reaching its decision; however, all of these factors went to the wisdom, propriety, and correctness of the decision, rather than compliance with the statutory procedures for annexation, and could not be challenged by seeking declaratory or injunctive relief. Braunagel v. City of Devils Lake, 2001 ND 118, 629 N.W.2d 567, 2001 N.D. LEXIS 141 (N.D. 2001).

Alternative to Mandamus Action.

Trial court incorrectly concluded that injunction was an inappropriate form of relief, since a writ of injunction under this chapter is the correlative of the writ of mandamus under N.D.C.C. Ch. 32-34, and public officers can be compelled to comply with the law through mandamus, or mandatory injunction proceedings, the effect of the two procedures being essentially the same; therefore, a prison inmate’s right to compel prison authorities to provide him with free eyeglasses was dismissed prematurely where the performance of such an act could not be decided on the pleadings alone. Ennis v. Dasovick, 506 N.W.2d 386, 1993 N.D. LEXIS 168 (N.D. 1993).

Discretion of Court.

The granting of a temporary restraining order is within the sound legal discretion of the court. Campbell v. Campbell, 58 N.D. 244, 225 N.W. 805, 1929 N.D. LEXIS 201 (N.D. 1929).

Mortgage Foreclosure.

An injunction pendente lite can be issued only in a pending action or special proceeding, or to enjoin a mortgage foreclosure by advertisement. Security State Bank v. Peterson, 59 N.D. 341, 229 N.W. 921, 1930 N.D. LEXIS 147 (N.D. 1930).

Municipal Contract.

The taxpayers of a city had a right to maintain an action for an injunction restraining paving contract without showing any interest or injury other than that which they would suffer as taxpayers. Green v. Beste, 76 N.W.2d 165, 1956 N.D. LEXIS 112 (N.D. 1956).

Provisional Remedy.

The provisional remedy by injunction in this state is of statutory origin and is granted to a plaintiff only when necessary to protect his rights pending the final determination of the case upon the merits. Forman v. Healey, 11 N.D. 563, 93 N.W. 866, 1903 N.D. LEXIS 80 (N.D. 1903).

Supreme Court Issuing.

Writ of injunction was denied by the supreme court, the application for leave to file the information not being made by the attorney general, or in the name of the state, where the writ was sought as an original writ and not in aid of jurisdiction that had already attached. Anderson v. Gordon, 9 N.D. 480, 83 N.W. 993, 1900 N.D. LEXIS 159 (N.D. 1900).

Adequate Alternate Remedy.

Preliminary injunctions usually will be denied if the applicant has adequate alternative remedy in the form of money damages or other relief. Vorachek v. Citizens State Bank, 461 N.W.2d 580, 1990 N.D. LEXIS 204 (N.D. 1990).

Cancellation of Instruments.

In proceedings for the surrender and cancellation of a note and chattel mortgage executed pursuant to a fraudulent understanding, plaintiff’s request for an order restraining defendants, during pendency of such action, from assigning or transferring the note and mortgage was properly denied where it stated only that plaintiff anticipated and feared that defendants would make such transfer or assignment. Federal Land Bank v. Koslofsky, 67 N.D. 322, 271 N.W. 907, 1936 N.D. LEXIS 164, 1937 N.D. LEXIS 85 (N.D. 1936).

Commercial Speech.

In determining whether the trial court’s preliminary injunction constituted an unconstitutional prior restraint, it is necessary to determine whether the communication constituted commercial or noncommercial speech and then to determine whether the trial court afforded appropriate safeguards in imposing the preliminary injunction commensurate with the type of speech involved. Fargo Women's Health Org. v. Larson, 381 N.W.2d 176, 1986 N.D. LEXIS 234 (N.D.), cert. denied, 476 U.S. 1108, 106 S. Ct. 1957, 90 L. Ed. 2d 365, 1986 U.S. LEXIS 2996 (U.S. 1986).

Advertisements of services of pro-life medical clinic held not fully protected speech, so that question of unconstitutional prior restraint of preliminary injunction prescribing false and misleading advertisements would be judged under a relaxed standard of scrutiny appropriate to commercial speech. Fargo Women's Health Org. v. Larson, 381 N.W.2d 176, 1986 N.D. LEXIS 234 (N.D.), cert. denied, 476 U.S. 1108, 106 S. Ct. 1957, 90 L. Ed. 2d 365, 1986 U.S. LEXIS 2996 (U.S. 1986).

Any system of prior restraint on speech bears a heavy presumption against its constitutionality validity. However, commercial speech does not receive the full panoply of protection under the First Amendment as do other forms of protected speech. Fargo Women's Health Org. v. Larson, 381 N.W.2d 176, 1986 N.D. LEXIS 234 (N.D.), cert. denied, 476 U.S. 1108, 106 S. Ct. 1957, 90 L. Ed. 2d 365, 1986 U.S. LEXIS 2996 (U.S. 1986).

Although the extent to which the prior restraint doctrine applies to commercial speech has not been fully delineated, it is quite clear that prior restraint on commercial speech is allowed to an extent which would not be allowed toward other forms of protected speech. Fargo Women's Health Org. v. Larson, 381 N.W.2d 176, 1986 N.D. LEXIS 234 (N.D.), cert. denied, 476 U.S. 1108, 106 S. Ct. 1957, 90 L. Ed. 2d 365, 1986 U.S. LEXIS 2996 (U.S. 1986).

Criminal Proceedings.

An injunction will not be granted to stay criminal or quasi criminal proceedings. Lockwood v. Baird, 59 N.D. 713, 231 N.W. 851, 1930 N.D. LEXIS 189 (N.D. 1930).

The fact that a state statute can be enforced only by criminal prosecutions does not defeat the jurisdiction of equity to enjoin unlawful interference with property rights by unauthorized criminal proceedings under the statute. Weyman-Bruton Co. v. Ladd, 231 F. 898, 1916 U.S. App. LEXIS 1731 (8th Cir. N.D. 1916), limited, Smith v. Tillitson, 29 F.2d 535, 1928 U.S. App. LEXIS 2743 (8th Cir. Kan. 1928).

Defective Complaint.

An application for a temporary injunction should be denied where the complaint does not show a cause of action, and the defect in the complaint cannot be supplied by affidavit. King v. Stark County, 66 N.D. 467, 266 N.W. 654, 1936 N.D. LEXIS 189, 1936 N.D. LEXIS 190 (N.D. 1936).

Demand for Relief.

To authorize an injunction pendente lite the complaint must exhibit a right to a judgment of injunction, and the demand for relief must pray that the defendant be restrained from the commission of the act complained of during the litigation. McClure v. Hunnewell, 13 N.D. 84, 99 N.W. 48, 1904 N.D. LEXIS 13 (N.D. 1904).

A temporary restraining order may be issued in a civil action when one of the several conditions enumerated in the statute is shown to exist, but only when it shall appear by the complaint that the plaintiff is entitled to the relief demanded. Burton v. Walker, 13 N.D. 149, 100 N.W. 257, 1904 N.D. LEXIS 34 (N.D. 1904).

Determinative Factors.

The following factors are appropriate in determining whether injunctive relief should be granted: (1) substantial probability of succeeding on the merits; (2) irreparable injury; (3) harm to other interested parties; (4) effect on the public interest. (See Dataphase Systems v. C. L. Systems, 640 F.2d 109 (8th Cir. 1981) for a summary of these factors which is consistent with North Dakota law.) F-M Asphalt v. North Dakota State Highway Dep't, 384 N.W.2d 663, 1986 N.D. LEXIS 293 (N.D. 1986).

Nothing in record indicated that money damages would have been inadequate, that defendants would have been unable to satisfy money judgment in event that plaintiffs prevailed on merits, or that bank was in any danger as financial institution. Absence of any such evidence indicated that plaintiffs’ injuries, if any, could be adequately compensated by an award of damages and that plaintiffs were not likely to suffer irreparable harm before decision on merits could be rendered. Vorachek v. Citizens State Bank, 461 N.W.2d 580, 1990 N.D. LEXIS 204 (N.D. 1990).

A trial court’s discretion to grant or deny a preliminary injunction is based upon the following factors: (1) substantial probability of succeeding on the merits; (2) irreparable injury; (3) harm to other interested parties; and (4) effect on the public interest. Vorachek v. Citizens State Bank, 461 N.W.2d 580, 1990 N.D. LEXIS 204 (N.D. 1990).

Landowner was not entitled to injunctive relief prohibiting a city from entering the landowner’s property to remove nuisance vehicles because the landowner did not show any injunctive relief factors weighed in the landowner’s favor, as the landowner did not show (1) a substantial probability of succeeding on the merits, (2) irreparable injury, (3) harm to other interested parties, or (4) a benefit to the public interest from granting the landowner the relief requested. State ex rel. City of Marion v. Alber, 2019 ND 289, 936 N.W.2d 52, 2019 N.D. LEXIS 289 (N.D. 2019).

Discretion of Court.

The granting or refusing of a temporary restraining order lies within the sound legal discretion of the court to which application is made. Bartels N. Oil Co. v. Jackman, 29 N.D. 236, 150 N.W. 576, 1915 N.D. LEXIS 7 (N.D. 1915); Federal Land Bank v. Koslofsky, 67 N.D. 322, 271 N.W. 907, 1936 N.D. LEXIS 164, 1937 N.D. LEXIS 85 (N.D. 1936).

The court may enjoin conduct which, if not restrained, would produce injury to the plaintiff “when it shall appear by the complaint that the plaintiff is entitled to the relief demanded”. On appeal, the North Dakota supreme court will not set aside an order granting a preliminary injunction unless the trial court abused its discretion in entering the order. Fargo Women's Health Org. v. Larson, 381 N.W.2d 176, 1986 N.D. LEXIS 234 (N.D.), cert. denied, 476 U.S. 1108, 106 S. Ct. 1957, 90 L. Ed. 2d 365, 1986 U.S. LEXIS 2996 (U.S. 1986).

A court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner. Vorachek v. Citizens State Bank, 461 N.W.2d 580, 1990 N.D. LEXIS 204 (N.D. 1990).

Decision to grant or deny preliminary injunction is within discretion of trial court, and its determination will not be disturbed on appeal unless it abused its discretion. Vorachek v. Citizens State Bank, 461 N.W.2d 580, 1990 N.D. LEXIS 204 (N.D. 1990).

Disputed Title.

Court had no authority, by an injunction, to take from defendant property clearly his and to which he held title, merely because there was a dispute between the parties as to the fulfillment of the terms of the contract of sale. FARMERS UNION OIL CO. v. KILGORE, 71 N.D. 199, 299 N.W. 318, 1941 N.D. LEXIS 154 (N.D. 1941).

Duration of Temporary Injunction.

A temporary injunction is issued only to preserve the rights of the plaintiff during the pendency of the action and where the reasons for granting such injunction have ceased to exist and it is not likely that the acts which the temporary injunction sought to prohibit will be renewed, the injunction should be dissolved. Brace v. Steele County, 77 N.D. 276, 42 N.W.2d 672, 1950 N.D. LEXIS 127, 1950 N.D. LEXIS 128 (N.D. 1950).

Extraordinary Remedy.

Preliminary injunction is an extraordinary and drastic remedy and should not be granted unless the movant, by a clear showing, carries the burden of persuasion. Vorachek v. Citizens State Bank, 461 N.W.2d 580, 1990 N.D. LEXIS 204 (N.D. 1990).

Irregular Issuance.

An injunctional order in an equity case pendente lite issued by a court having full equity powers and complete jurisdiction of the subject matter must be obeyed while it remains in force, however irregularly it may have issued. State v. Markuson, 7 N.D. 155, 73 N.W. 82, 1897 N.D. LEXIS 53 (N.D. 1897).

Irreparable Harm.

In absence of any evidence of irreparable harm, district court abused its discretion in issuing preliminary injunction limiting expenses of officers, directors and employees of the bank and compensation of defendant as well as restraining directors, officers, shareholders and employees of bank from taking any action to impair value of bank. Vorachek v. Citizens State Bank, 461 N.W.2d 580, 1990 N.D. LEXIS 204 (N.D. 1990).

An injury is irreparable when it cannot be adequately compensated in damages, and it is not necessary that pecuniary damage be shown to be great. Acts which result in a serious change of, or are destructive to, the property affected either physically or in the character in which it has been held or enjoyed, do an irreparable injury. Vorachek v. Citizens State Bank, 461 N.W.2d 580, 1990 N.D. LEXIS 204 (N.D. 1990).

Preservation of Status Quo.

Preservation of the status quo recognizes that the most important prerequisite for issuance of a preliminary injunction is demonstrating that, if a preliminary injunction is not granted, the applicant is likely to suffer irreparable harm before decision on merits can be rendered. Vorachek v. Citizens State Bank, 461 N.W.2d 580, 1990 N.D. LEXIS 204 (N.D. 1990).

Court’s discretion is exercised in light of preserving status quo and protecting rights of applicant pending determination on the merits. Vorachek v. Citizens State Bank, 461 N.W.2d 580, 1990 N.D. LEXIS 204 (N.D. 1990).

Provisional Remedy.

A defendant in a civil action is not entitled to a provisional remedy by injunction. Forman v. Healey, 11 N.D. 563, 93 N.W. 866, 1903 N.D. LEXIS 80 (N.D. 1903).

Scope of Appellate Review.

In reviewing the propriety of a preliminary injunction, it is inappropriate for the supreme court to resolve merit issues on the principal action. Fargo Women's Health Org. v. Larson, 381 N.W.2d 176, 1986 N.D. LEXIS 234 (N.D.), cert. denied, 476 U.S. 1108, 106 S. Ct. 1957, 90 L. Ed. 2d 365, 1986 U.S. LEXIS 2996 (U.S. 1986).

In determining whether or not the trial court abused its discretion in granting the preliminary injunction, the North Dakota supreme court is bound by the facts as presented to the trial court. Fargo Women's Health Org. v. Larson, 381 N.W.2d 176, 1986 N.D. LEXIS 234 (N.D.), cert. denied, 476 U.S. 1108, 106 S. Ct. 1957, 90 L. Ed. 2d 365, 1986 U.S. LEXIS 2996 (U.S. 1986).

Supreme Court Issuing.

The supreme court, in the exercise of its original jurisdiction, can issue a writ of injunction only upon an information therefor filed by the attorney general or under his authority, and by leave of the court first obtained and in the name of the state. Anderson v. Gordon, 9 N.D. 480, 83 N.W. 993, 1900 N.D. LEXIS 159 (N.D. 1900).

Because a candidate for insurance commissioner was not a resident until after November 2016, she would not have been a North Dakota resident for five years on November 3, 2020. Thus, pursuant to N.D.C.C. §§ 27-02-04 and 32-06-02(1), an elector was entitled to a writ of injunction restraining the Secretary of State from placing the candidate’s name on the general election ballot. Berg v. Jaeger, 2020 ND 178, 948 N.W.2d 4, 2020 N.D. LEXIS 181 (N.D. 2020).

Tourist Camp Inspection.

A tourist camp operator could not maintain an action to enjoin inspection of the camp by the state food commissioner and the inspector of hotels. Lockwood v. Baird, 59 N.D. 713, 231 N.W. 851, 1930 N.D. LEXIS 189 (N.D. 1930).

Applicability.

This section was intended to prevent temporary orders from substituting indefinitely for a permanent ruling after a hearing on the merits, and the six-month limitation under this section applies to temporary or preliminary injunctions. State v. Holecek, 545 N.W.2d 800, 1996 N.D. LEXIS 102 (N.D. 1996).

Discretion of Court.

This section vests in the trial court the discretion to determine in the first instance whether a temporary injunction shall be granted upon the giving of the proper security; but that discretion should be exercised in the light of the rule that the purpose of a temporary injunction is to preserve the status quo and protect the rights of the plaintiff pending a determination of the merits. Gillies v. Radke, 78 N.D. 974, 54 N.W.2d 155, 1952 N.D. LEXIS 90 (N.D. 1952).

A temporary injunction may be issued by the court in its discretion at the commencement of an action, if by the pleadings and supporting affidavits the court deems sufficient grounds exist therefor. Gunsch v. Gunsch, 69 N.W.2d 739, 1954 N.D. LEXIS 121, 1955 N.D. LEXIS 101 (N.D. 1954).

Enforcement of Execution.

An injunction pendente lite can be issued only in a pending action or special proceeding, or to enjoin a mortgage foreclosure by advertisement, but not to enjoin a judgment creditor from enforcing an execution. Security State Bank v. Peterson, 59 N.D. 341, 229 N.W. 921, 1930 N.D. LEXIS 147 (N.D. 1930).

Failure to Demand Hearing or Dissolution.

Trial court erred in dismissing criminal charges under N.D.C.C. § 12.1-10-05 against defendants accused of violating temporary injunction, who had not exercised their right to demand a hearing be held within six months of the time the temporary injunction was issued or to seek dissolution of the injunction after six months under this section, because the injunction remained valid and their attempt to dissolve the injunction after alleged violation came too late. State v. Holecek, 545 N.W.2d 800, 1996 N.D. LEXIS 102 (N.D. 1996).

House of Prostitution.

A house of prostitution may be enjoined as a nuisance. State v. Simpson, 78 N.D. 360, 49 N.W.2d 777, 1951 N.D. LEXIS 95 (N.D. 1951), disapproved, Waller v. Florida, 397 U.S. 387, 90 S. Ct. 1184, 25 L. Ed. 2d 435, 1970 U.S. LEXIS 52 (U.S. 1970).

Waiver of Time Limit on Hearing.

The six-month limitation imposed by this section, can be waived by a party who objects to making a temporary order permanent. Ronngren v. Beste, 483 N.W.2d 191, 1992 N.D. LEXIS 65 (N.D. 1992).

Collateral References.

Injunction 140, 141, 152.

42 Am. Jur. 2d, Injunctions, §§ 12 et seq.

43A C.J.S. Injunctions, §§ 296, 297, 310-317, 335-346.

Application of Statute.

The provisions of this statute as to security upon an injunction are mandatory. Murphy v. Swanson, 50 N.D. 788, 198 N.W. 116, 1924 N.D. LEXIS 32 (N.D. 1924).

Discretion of Court.

In proceedings to enjoin increased utility rates, it was not an abuse of discretion for trial court to require defendants to furnish adequate bonds conditioned for the repayment of surcharges collected under the purported orders of the public service commission. State ex rel. Lemke v. Union Light, Heat, & Power Co., 47 N.D. 402, 182 N.W. 539, 1921 N.D. LEXIS 115 (N.D. 1921).

A trial court, upon dissolution of injunction, has discretionary power to assess damages, to order the damages to be ascertained by reference or in such other manner as the court may direct, or leave the injunction defendant to his remedy by an action at law. Wolfgram v. Hall, 79 N.D. 138, 54 N.W.2d 896, 1952 N.D. LEXIS 105 (N.D. 1952).

Failure to Furnish Security.

Failure to furnish security for a temporary injunction does not necessarily require the injunction to be vacated, but is a matter that may be remedied by the furnishing of the security. Hunt Oil Co. v. Kerbaugh, 283 N.W.2d 131, 1979 N.D. LEXIS 296 (N.D. 1979).

Failure to Require Bond.

Whether a trial court erred in granting an injunction pendente lite without requiring a bond from the plaintiffs is not important on appeal from the final judgment in an action tried on the merits. Weeks v. Hetland, 52 N.D. 351, 202 N.W. 807, 1925 N.D. LEXIS 26 (N.D. 1925).

Where, at the inception of an action by conditional buyers to enjoin conditional vendors from taking possession of or selling the property, the plaintiffs furnished the required written undertaking, unlimited in amount, an injunction issued by the trial court was not invalid for want of the undertaking required by this section. Mevorah v. Goodman, 65 N.W.2d 278, 1954 N.D. LEXIS 85, 1954 N.D. LEXIS 86 (N.D. 1954).

Purpose of Statute.

The purpose of the security required to be given upon the granting of an injunction pursuant to this section is to indemnify the defendants against damages resulting from injury sustained as a consequence of the injunction. The statute does not require security for punitive damages. Gillies v. Radke, 78 N.D. 974, 54 N.W.2d 155, 1952 N.D. LEXIS 90 (N.D. 1952).

Security Mandatory.

Where no provision as to security is made by statute, furnishing of security is required for the issuance of a temporary injunction. Hunt Oil Co. v. Kerbaugh, 283 N.W.2d 131, 1979 N.D. LEXIS 296 (N.D. 1979).

Collateral References.

Injunction 148.

42 Am. Jur. 2d, Injunctions, §§ 282 et seq.

43A C.J.S. Injunctions, §§ 286-290.

Dismissal of suit for injunction as conclusively establishing that temporary injunction had been improvidently granted, 54 A.L.R.2d 473, 505.

Necessary parties defendant to independent action on injunction bond, 55 A.L.R.2d 545.

Prerequisite to issuance of temporary restraining order, 73 A.L.R.2d 854.

Court’s lack of jurisdiction of subject matter in granting injunction as a defense in action on injunction bond, 82 A.L.R.2d 1064.

Dismissal without prejudice as breach of injunction bond, 91 A.L.R.2d 1312.

Period for which damages are recoverable or are computed under injunction bond, 95 A.L.R.2d 1190.

Application of Statute.

This section recognizes the jurisdiction of the court to grant a temporary injunction ex parte and places the question of whether a hearing shall be had prior to such granting within the discretion of the court. State v. Simpson, 78 N.D. 360, 49 N.W.2d 777, 1951 N.D. LEXIS 95 (N.D. 1951), disapproved, Waller v. Florida, 397 U.S. 387, 90 S. Ct. 1184, 25 L. Ed. 2d 435, 1970 U.S. LEXIS 52 (U.S. 1970).

Irregularity in Issuing.

An irregularity in the manner of the issuance of the temporary injunction cannot avail the defendant in a criminal contempt proceeding for violating the injunction. State v. Simpson, 78 N.D. 360, 49 N.W.2d 777, 1951 N.D. LEXIS 95 (N.D. 1951), disapproved, Waller v. Florida, 397 U.S. 387, 90 S. Ct. 1184, 25 L. Ed. 2d 435, 1970 U.S. LEXIS 52 (U.S. 1970).

Application of Statute.

This section refers to the restraining of acts not illegal in themselves but which may destroy the status quo of the matter in issue until the rights of the parties are adjudicated. State v. Simpson, 78 N.D. 360, 49 N.W.2d 777, 1951 N.D. LEXIS 95 (N.D. 1951), disapproved, Waller v. Florida, 397 U.S. 387, 90 S. Ct. 1184, 25 L. Ed. 2d 435, 1970 U.S. LEXIS 52 (U.S. 1970).

Damages.

In a case involving a prescriptive road, an owner was not entitled to damages or attorney fees regarding the procedural method used under current law for obtaining an ex parte temporary restraining order. Such orders were allowed in exigent circumstances to preserve the parties’ rights. McKenzie County v. Reichman, 2012 ND 20, 812 N.W.2d 332, 2012 N.D. LEXIS 20 (N.D. 2012).

Dissolving Temporary Restraining Order.

Where party made a prima facie showing entitling it to a temporary restraining order, and no change in the facts or law occurred between the time the restraining order was granted and the time it was dissolved, the temporary restraining order should not have been dissolved and the district court abused its discretion in doing so. Amerada Hess Corp. v. Furlong Oil & Minerals Co., 336 N.W.2d 129, 1983 N.D. LEXIS 308 (N.D. 1983).

Purpose of Order.

The purpose of a restraining order is to keep matters in status quo until a determination is made whether a temporary injunction should issue. Gunsch v. Gunsch, 69 N.W.2d 739, 1954 N.D. LEXIS 121, 1955 N.D. LEXIS 101 (N.D. 1954).

Motion to Vacate.

When an injunction pendente lite has been issued without notice by a court of equity having jurisdiction of the subject matter and of the defendant, the defendant may, at any time under this section, move to vacate it, but until such motion is granted the injunctional order remains in full force. State v. Simpson, 78 N.D. 360, 49 N.W.2d 777, 1951 N.D. LEXIS 95 (N.D. 1951), disapproved, Waller v. Florida, 397 U.S. 387, 90 S. Ct. 1184, 25 L. Ed. 2d 435, 1970 U.S. LEXIS 52 (U.S. 1970).

Waiver.

Any question about the propriety of the trial court issuing temporary restraining order was waived by failure of defendants to move that it be quashed, and by failure to insist on a dissolution upon hearing, and by the submission of the whole matter for trial on the merits. Gunsch v. Gunsch, 69 N.W.2d 739, 1954 N.D. LEXIS 121, 1955 N.D. LEXIS 101 (N.D. 1954).

Collateral References.

Injunction 160-188.

42 Am. Jur. 2d, Injunctions, § 311.

43A C.J.S. Injunctions, §§ 373-377, 379-392.

Damages for Use During Detention.

In an action of claim and delivery, a party recovering property wrongfully detained from his possession may recover as damages the value of its use during the period of detention where it has a usable value and is not held for sale or consumption. Tooz v. Tooz, 76 N.D. 732, 39 N.W.2d 257, 1949 N.D. LEXIS 94 (N.D. 1949).

Demand.

In an action of claim and delivery to recover possession of buildings, no demand was necessary where plaintiff’s right to recover was contested by the defendant upon a claim of superior right. Myrick v. Bill, 17 N.W. 268, 3 Dakota 284, 1883 Dakota LEXIS 3 (Dakota 1883).

Exempt Property.

An action in claim and delivery will lie to recover property exempt from attachment. Wagner v. Olson, 3 N.D. 69, 54 N.W. 286, 1893 N.D. LEXIS 1 (N.D. 1893); Oliver v. Wilson, 8 N.D. 590, 80 N.W. 757, 1899 N.D. LEXIS 53 (N.D. 1899).

Foreclosure Action Distinguished.

—Law of the Case.

Defendants’ claim they were entitled to jury trial because plaintiff’s action was a legal action for possession of specific property, and not an equitable action for foreclosure, could not be raised following trial court’s decision to the contrary prior to defendants’ first appeal, because the law-of-the-case doctrine encompassed issues decided by the trial court which were not presented for review in prior appeal. Sargent County Bank v. Wentworth, 547 N.W.2d 753, 1996 N.D. LEXIS 154 (N.D. 1996).

Joint Ownership.

Where indivisible property is jointly owned, a co-owner may not recover damages in an action of claim and delivery on account of its detention by another co-owner who has possession of the property. Tooz v. Tooz, 76 N.D. 732, 39 N.W.2d 257, 1949 N.D. LEXIS 94 (N.D. 1949).

Jurisdiction.

One who invokes or submits himself to the jurisdiction of a court cannot later object to the exercise of its jurisdiction on the ground of noncompliance with the statute by the adverse party. Allen v. Bohner, 54 N.D. 14, 208 N.W. 234 (1926), decided prior to the adoption of N.D.R.Civ.P. 12.

Rule 54(b) Determination.

In claim and delivery proceedings, where trial court was not requested to make and did not make an express N.D.R.Civ.P. 54(b) determination, nor was such a determination implicit in the court’s decision, an order granting creditor possession of certain property was not immediately appealable, as there were issues remaining to be determined. Massey-Ferguson Credit Corp. v. Bloomquist, 444 N.W.2d 694, 1989 N.D. LEXIS 176 (N.D. 1989).

Special Interest in Property.

One who is lawfully entitled to the possession of personal property, by virtue of special property therein, may maintain an action to recover the possession thereof. Everett v. Buchanan, 6 N.W. 439, 2 Dakota 249, 1880 Dakota LEXIS 4 (Dakota 1880); Suchy v. Strain, 51 N.D. 106, 199 N.W. 193, 1924 N.D. LEXIS 152 (N.D. 1924).

Collateral References.

Replevin 25.

66 Am. Jur. 2d, Replevin, § 54.

77 C.J.S. Replevin, §§ 42-45.

Sufficiency of proof of possession of defendant at commencement of action, 2 A.L.R.2d 1043.

Credit for upkeep or other expense in computing damages for use or detention of property, 7 A.L.R.2d 933.

Agent: remedy of replevin where agent, employed to purchase personal property, buys it for himself, 20 A.L.R.2d 1140, 1149.

Timber: action against landowner for recovery of possession of cut timber after his revocation of license, 26 A.L.R.2d 1194, 1197.

Use of property: recovery of damages in replevin for value of use of property detained, by successful party having only security interest as conditional vendor, chattel mortgagee, or the like, 33 A.L.R.2d 774.

Availability of replevin or similar possessory action to one not claiming as heir, legatee, or creditor of decedent’s estate, against personal representative, 42 A.L.R.2d 418.

Loss of profits: allowance, in replevin action, of loss of profits from deprivation of use of detained property, 48 A.L.R.2d 1053.

County that may bring replevin, or similar possessory action, 60 A.L.R.2d 487.

Attorneys’ fees, recovery, as damages by successful litigant in replevin or detinue action, 60 A.L.R.2d 945.

Cotenants: maintenance of replevin or similar possessory remedy by cotenant, or security transaction creditor thereof, against other cotenants, 93 A.L.R.2d 358.

Possession: recovery of value of property in replevin or similar possessory action where defendant, at time action is brought, is no longer in possession of property, 97 A.L.R.2d 896.

Voluntary dismissal of replevin action by plaintiff as affecting defendant’s right to judgment for the return or value of the property, 24 A.L.R.3d 768.

Consumer goods: modern view as to validity of statute or contractual provision authorizing summary repossession of consumer goods sold under retail installment sales contract, 45 A.L.R.3d 1233.

Comment note: Amount of attorneys’ compensation in absence of contract or statute fixing amount, 57 A.L.R.3d 475.

Prejudgment seizures: modern views as to validity, under federal constitution, of state prejudgment attachment, garnishment, and replevin procedures, distraint procedures under landlords’ or innkeepers’ lien statutes, and like procedures authorizing summary seizure of property, 18 A.L.R. Fed. 223.

In General.

The statutory language in this section and N.D.C.C. § 32-07-05 and 7543, C.L. 1913, is similar and the purpose sought to be achieved by them is similar. Production Credit Ass'n v. Halverson, 386 N.W.2d 905, 1986 N.D. LEXIS 316 (N.D. 1986).

Breach of Undertaking.

The condition in plaintiff’s undertaking “for the prosecution of the action” is broken if plaintiff fails to prosecute the action to a final determination on the merits, either through his own fault or through the fault of the justice before whom the action is pending in entering a void judgment. Siebolt v. Konatz Sadlery Co., 15 N.D. 87, 106 N.W. 564, 1906 N.D. LEXIS 16 (N.D. 1906).

Prejudgment Seizure As Drastic Remedy.

Prejudgment seizure of a defendant’s property before there has been a determination of the underlying claim and before the defendant has had an opportunity to be heard on the merits of the underlying claim, is a drastic remedy the granting of which demands the utmost caution and sensitivity. Production Credit Ass'n v. Halverson, 386 N.W.2d 905, 1986 N.D. LEXIS 316 (N.D. 1986).

Strict Compliance with Statutes.

In view of the magnitude of harm that a plaintiff may visit upon a defendant by obtaining prejudgment possession of the defendant’s property through claim and delivery proceedings, strict compliance with statutes designed to protect the defendant is required. Production Credit Ass'n v. Halverson, 386 N.W.2d 905, 1986 N.D. LEXIS 316 (N.D. 1986).

Sufficiency of Defendant As Surety.

Trial court erred in granting secured-creditor defendant prejudgment possession of plaintiff’s machinery and equipment pursuant to this section and N.D.C.C. § 32-07-05 because the replevin bond and written undertaking filed by defendant was executed by defendant only and was not executed by any sureties, even though plaintiff failed to object to the sufficiency of defendant as surety within the three days after service statutory period. Production Credit Ass'n v. Halverson, 386 N.W.2d 905, 1986 N.D. LEXIS 316 (N.D. 1986).

Undertakings with No Sureties.

The North Dakota Supreme Court discerns no reason why claim and delivery undertakings with no sureties should be treated any differently than attachment undertakings with no sureties. Production Credit Ass'n v. Halverson, 386 N.W.2d 905, 1986 N.D. LEXIS 316 (N.D. 1986).

Collateral References.

Replevin 33.

66 Am. Jur. 2d, Replevin, §§ 44, 45.

77 C.J.S. Replevin, §§ 54-60.

In General.

The statutory language in this section and N.D.C.C. § 32-07-04 and 7543, C.L. 1913, is similar and the purpose sought to be achieved by them is similar. Production Credit Ass'n v. Halverson, 386 N.W.2d 905, 1986 N.D. LEXIS 316 (N.D. 1986).

Prejudgment Seizure As Drastic Remedy.

Prejudgment seizure of a defendant’s property before there has been a determination of the underlying claim and before the defendant has had an opportunity to be heard on the merits of the underlying claim, is a drastic remedy the granting of which demands the utmost caution and sensitivity. Production Credit Ass'n v. Halverson, 386 N.W.2d 905, 1986 N.D. LEXIS 316 (N.D. 1986).

Strict Compliance with Statutes.

In view of the magnitude of harm that a plaintiff may visit upon a defendant by obtaining prejudgment possession of the defendant’s property through claim and delivery proceedings, strict compliance with statutes designed to protect the defendant is required. Production Credit Ass'n v. Halverson, 386 N.W.2d 905, 1986 N.D. LEXIS 316 (N.D. 1986).

Sufficiency of Defendant As Surety.

Trial court erred in granting secured-creditor defendant prejudgment possession of plaintiff’s machinery and equipment pursuant to this section and N.D.C.C. § 32-07-04 because the replevin bond and written undertaking filed by defendant was executed by defendant only and was not executed by any sureties, even though plaintiff failed to object to the sufficiency of defendant as surety within the three days after service statutory period. Production Credit Ass'n v. Halverson, 386 N.W.2d 905, 1986 N.D. LEXIS 316 (N.D. 1986).

Undertakings with No Sureties.

The North Dakota supreme court discerns no reason why claim and delivery undertakings with no sureties should be treated any differently than attachment undertakings with no sureties. Production Credit Ass'n v. Halverson, 386 N.W.2d 905, 1986 N.D. LEXIS 316 (N.D. 1986).

Amount of Bond.

In claim and delivery action the amount of the redelivery bond of the defendant is fixed by the value of the property as alleged in the affidavit. Dickinson v. First Nat'l Bank, 64 N.D. 273, 252 N.W. 54, 1933 N.D. LEXIS 274 (N.D. 1933).

Farm Machinery.

Farm machinery could not be returned to plaintiff in substantially as good condition as it was when delivered under redelivery bond where it had not been sheltered from the weather. Anderson v. Phillips, 40 N.D. 586, 169 N.W. 315, 1918 N.D. LEXIS 110 (N.D. 1918).

Money Judgment.

Where in a claim and delivery action a money judgment only was recovered, a complaint on the redelivery bond, conditioned as provided by the statute, which alleged merely the nonpayment of the judgment, failed to state a cause of action. Larson v. Hanson, 21 N.D. 411, 131 N.W. 229, 1911 N.D. LEXIS 101 (N.D. 1911); Farmers Nat'l Bank v. Ferguson, 28 N.D. 347, 148 N.W. 1049, 1914 N.D. LEXIS 118 (N.D. 1914).

A redelivery undertaking is not only a substitute for the possession of the property by the plaintiff, but is security for any money judgment recovered. Larson v. Hanson, 26 N.D. 406, 144 N.W. 681, 1913 N.D. LEXIS 74 (N.D. 1913).

Possession by Defendant.

One who gives a forthcoming bond in an action of claim and delivery is estopped from denying that the property was in his possession at the commencement of the action. Warren v. Olson, 46 N.D. 203, 180 N.W. 529, 1920 N.D. LEXIS 65 (N.D. 1920).

Recovery Against Sureties.

In order to recover from sureties on a redelivery undertaking, it is necessary to allege and prove either the due entry of a judgment in the alternative form or facts showing that it was impossible to return the property. Farmers Nat'l Bank v. Ferguson, 28 N.D. 347, 148 N.W. 1049, 1914 N.D. LEXIS 118 (N.D. 1914).

Collateral References.

Replevin 47-50.

66 Am. Jur. 2d, Replevin, § 48.

77 C.J.S. Replevin, §§ 74-79.

Damages.

Damages are recoverable by the prevailing party for the wrongful taking and detaining of personal property. Holt v. Van Eps, 46 N.W. 689, 1 Dakota 206, 1875 Dakota LEXIS 13 (Dakota 1875); Jandt v. South, 47 N.W. 779, 2 Dakota 46, 1878 Dakota LEXIS 9 (Dakota 1878).

Damages for the wrongful taking and detention of property are connected with the subject of the action within the meaning of the provision concerning the form of verdict to be returned in claim and delivery proceedings. McCarty v. Kepreta, 24 N.D. 395, 139 N.W. 992, 1913 N.D. LEXIS 9 (N.D. 1913).

Where trustee in bankruptcy of a mortgagee of personal property commenced an action for possession of the property before the mortgagee was entitled to possession, but subsequently and before the trial the mortgagee became entitled to possession by reason of the maturity of the mortgage, the amount of the debt far exceeding the value of the property, the trustee could be held liable for damages only for retention up to the time of maturity of the mortgage. Smythe v. Muri, 34 N.D. 242, 158 N.W. 264, 1916 N.D. LEXIS 27 (N.D. 1916).

Manufacturer’s seizure, detention, and sale of collateral much in excess of debt owed by the dealer were proper factors to be considered by the jury in determining what damages were sustained. John Deere Co. v. Nygard Equip., 225 N.W.2d 80, 1974 N.D. LEXIS 152 (N.D. 1974).

Judgment in Alternative.

Where it is shown that plaintiff purchased the greater part of goods at an auction sale before trial and can return them to the defendant, the judgment in claim and delivery in favor of the defendant should be in the alternative rather than simply a money judgment. Smith v. Willoughby, 24 N.D. 1, 138 N.W. 7, 1912 N.D. LEXIS 4 (N.D. 1912).

Questions for Jury.

It is unnecessary for the jury to find the value of the property where it is in possession of the plaintiff, who is found to be entitled to the possession. Johnson v. Wagner, 42 N.D. 542, 174 N.W. 73, 1919 N.D. LEXIS 182 (N.D. 1919).

Separate Rights.

The right of a claimant in claim and delivery to have his property or its value, and the right to recover damages for the wrongful taking and detention thereof, are separate rights. Nichols & Shepard Co. v. Paulson, 10 N.D. 440, 87 N.W. 977, 1901 N.D. LEXIS 46 (N.D. 1901).

Collateral References.

Replevin 92-97.

66 Am. Jur. 2d, Replevin, §§ 93 et seq.

Constitutionality.

This chapter, as it read prior to the 1991 amendments, was held unconstitutional, as it denied due process to debtors. Garrison Mem. Hosp. v. Rayer, 453 N.W.2d 787 (N.D. 1990).

Although under this chapter, as it read prior to amendment in 1991, a defendant could seek a hearing after an ex parte prejudgment writ of attachment had been issued, there was no statute entitling a defendant to an immediate or prompt full hearing after issuance of the writ at which the plaintiff was required to prove an underlying debt or its amount or even probable cause; therefore, this chapter did not pass constitutional muster. Garrison Mem. Hosp. v. Rayer, 453 N.W.2d 787 (N.D. 1990).

This chapter, as it read prior to amendment in 1991, denied defendant due process of law since, inter alia, N.D.C.C. §§ 32-08.1-02, 32-08.1-03, 32-08.1-05 did not require the plaintiff to show the nature and amount of the claim or demonstrate probable cause to a judge exercising discretion whenever necessary to minimize the likelihood of improvident issuance of a writ. Nor did the statutes require the plaintiff to show any reason why a summary issuance of a writ of attachment was necessary to avoid removal, destruction, or concealment of the property or loss of the plaintiff’s proprietary interests or that there were any other extraordinary situations requiring special protection to a state or creditor interest. The judge’s only duty with respect to the issuance of a writ was to sign it. Only after a writ had been issued was a judge afforded any opportunity for the exercise of judicial discretion, for such things as adjusting the amount of the plaintiff’s bond or vacating or modifying the writ. Garrison Mem. Hosp. v. Rayer, 453 N.W.2d 787 (N.D. 1990).

Constitutionality.

Former chapter 32-08 did not achieve the constitutional accommodation of the debtor’s and creditor’s conflicting interests required by the U. S. Supreme Court; because of that lack of constitutional accommodation, seizure of debtor’s mobile home was a denial of due process; former chapter 32-08 failed in that: 1) it was not necessary to allege summary attachment was needed to prevent removal, destruction or concealment of property or loss of creditor’s proprietary interests therein; 2) there was not adequate judicial supervision in that warrant could be issued by clerk alone without action by judge; 3) debtor seeking discharge of warrant had to post bond; 4) impact upon debtors in this particular case in physically seizing and removing their sole residence outweighed state’s interest in providing ex parte preliminary relief for creditors. Guzman v. Western State Bank, 516 F.2d 125, 1975 U.S. App. LEXIS 15713 (8th Cir. N.D. 1975).

Actions for Recovery of Money.

Attachment is essentially a legal proceeding and is confined to actions for the recovery of money only. Kohler v. Cole, 79 N.D. 226, 55 N.W.2d 589, 1952 N.D. LEXIS 115 (N.D. 1952).

Allegation of Intent to Cheat Creditor.

Where an attachment is issued upon plaintiff’s allegation in accordance with subsection 4 of this section, and the existence of this ground for attachment is denied by defendant upon a motion to discharge the attachment, plaintiff has the burden of establishing the alleged fraudulent intent as a matter of fact. Quality Builders v. Hahn, 134 N.W.2d 577, 1965 N.D. LEXIS 145 (N.D. 1965).

Bankruptcy Proceedings.

The lien of attachment on the personal property of a bankrupt, set aside as exempt in bankruptcy proceedings, is not discharged by the discharge in bankruptcy. F. Mayer Boot & Shoe Co. v. Ferguson, 19 N.D. 496, 126 N.W. 110, 1910 N.D. LEXIS 50 (N.D. 1910).

In action for purchase price of goods, where property was attached and judgment obtained within four months of filing of petition in bankruptcy, the lien of the attachment and judgment was nullified by the petition. Gray v. Arnot, 31 N.D. 461, 154 N.W. 268, 1915 N.D. LEXIS 200 (N.D. 1915).

Declaratory Judgment.

An action under the declaratory judgment statute, R.C. 1943, ch. 32-23, was not an action wherein an attachment proceeding could be brought under the provisions of this chapter. Kohler v. Cole, 79 N.D. 226, 55 N.W.2d 589, 1952 N.D. LEXIS 115 (N.D. 1952).

Dependent Remedy.

Attachment is a dependent remedy since it cannot exist independent of an action. Gans v. Beasley, 4 N.D. 140, 59 N.W. 714 (1894), distinguished, Baird v. Holie, 61 N.D. 280, 237 N.W. 786, 790 (1931), explained, Goldstein v. Peter Fox Sons Co., 22 N.D. 636, 135 N.W. 180, 40 L.R.A. (n.s.) 566 (1912), decided prior to the adoption of N.D.R.Civ.P. 12.

Description of Property.

Where an attachment is sought under subsection 8 of this section, the property must be specifically described. Weil v. Quam, 21 N.D. 344, 131 N.W. 244, 1911 N.D. LEXIS 105 (N.D. 1911).

False Pretenses.

The ground of attachment set out in subsection 6 of this section is available only when the action is commenced upon a debt which has been assented to by the defendant, and does not apply in an action to recover damages for a tort. Sonnesyn v. Akin, 12 N.D. 227, 97 N.W. 557, 1903 N.D. LEXIS 55 (N.D. 1903).

Fraud and Deceit.

The language of subsection 4 of this section states a single ground for attachment. McCarthy Bros. Co. v. McLean County Farmers Elevator Co., 18 N.D. 176, 118 N.W. 1049, 1908 N.D. LEXIS 110 (N.D. 1908).

On a motion to discharge an attachment, the plaintiff has the burden of establishing fraudulent intent in the disposition of the goods as alleged. Gamble-Robinson Minot Co. v. Mauratis, 55 N.D. 616, 214 N.W. 913, 1927 N.D. LEXIS 133 (N.D. 1927).

Statutory attachment may not issue in a judgment creditor’s equitable action to set aside a fraudulent conveyance. Security Nat'l Bank v. Bothne, 56 N.D. 269, 217 N.W. 148, 1927 N.D. LEXIS 96 (N.D. 1927).

A levy of attachment on property fraudulently transferred by the debtor constitutes election by the creditor to treat the conveyance as void. Holden v. Walker, 63 N.D. 372, 248 N.W. 318, 1933 N.D. LEXIS 192 (N.D. 1933).

Garnishment Distinguished.

Attachment and garnishment are entirely separate and distinct remedies. Park, Grant & Morris v. Nordale, 41 N.D. 351, 170 N.W. 555, 1918 N.D. LEXIS 150 (N.D. 1918).

Growing Crops.

Growing crops are subject to attachment. Kelly v. Stockgrowers Credit Corp., 66 N.D. 209, 263 N.W. 717, 1935 N.D. LEXIS 189 (N.D. 1935).

Mortgage Foreclosure.

A cause of action for the foreclosure of a real estate mortgage will not support the remedy by attachment. A. O. U. W. v. Wahlin, 61 N.D. 383, 237 N.W. 878, 1931 N.D. LEXIS 287 (N.D. 1931).

Money in the possession of the sheriff for the redemption of property sold under a mortgage foreclosure is subject to attachment by the creditor of the holder of the certificate of sale, if no duty rests on the sheriff except to pay the money to such holder. 64 N.D. 727, 256 N.W. 178.

Preference.

Payment by the debtor to one creditor in preference to another is not grounds for attachment. Quality Builders v. Hahn, 134 N.W.2d 577, 1965 N.D. LEXIS 145 (N.D. 1965).

Service of Summons.

Unless the summons in an action is served in the manner prescribed by law within required number of days after a warrant of attachment is issued therein, the writ becomes void and may be set aside on motion. Rhode Island Hosp. Trust Co. v. Keeney, 1 N.D. 411, 48 N.W. 341, 1891 N.D. LEXIS 9 (N.D. 1891).

A summons drawn and signed with the intention that it be served is issued. Smith v. Nicholson, 5 N.D. 426, 67 N.W. 296, 1896 N.D. LEXIS 43 (N.D. 1896).

Sufficiency of Complaint and Affidavit.

An affidavit was insufficient to authorize attachment where it merely stated that defendant had left the state of North Dakota, with intent to cheat and defraud his creditors. Severn v. Giese, 6 N.D. 523, 72 N.W. 922, 1897 N.D. LEXIS 30 (N.D. 1897).

The complaint and affidavit for attachment need not show that the defendant had property within this state subject to attachment. Hemmi v. Grover, 18 N.D. 578, 120 N.W. 561, 1909 N.D. LEXIS 19 (N.D. 1909); Thornley v. Lawbaugh, 31 N.D. 651, 143 N.W. 348, 1913 N.D. LEXIS 85 (N.D. 1913).

Tort Action.

Attachment may issue in a tort action for damages on the ground that defendant is a nonresident. Moen v. Melin, 57 N.D. 630, 223 N.W. 702, 1929 N.D. LEXIS 306 (N.D. 1929).

Vendor’s Lien.

After the delivery of goods sold, a vendor has no lien thereon except by virtue of the levy of an attachment. Gray v. Arnot, 31 N.D. 461, 154 N.W. 268, 1915 N.D. LEXIS 200 (N.D. 1915).

Note.

The following cases were decided under former chapter 32-08, which was declared unconstitutional; see Garrison Mem. Hosp. v. Rayer, 453 N.W.2d 787 (N.D. 1990).

Collateral References.

Attachment 21-48.

6 Am. Jur. 2d, Attachment and Garnishment, §§ 45 et seq.

7 C.J.S. Attachment, §§ 32-63, 166, 167.

What is an action for “debt” within attachment statute, 12 A.L.R.2d 787.

Foreign attachment or garnishment as available in action by nonresident against nonresident or foreign corporation upon a foreign cause of action, 14 A.L.R.2d 420.

Fraudulently contracted debt or fraudulently incurred liability or obligation within purview of statute authorizing attachment on such grounds, what constitutes a, 39 A.L.R.2d 1265, 1268.

Debt, what amounts to, within statute providing for attachment before debt is due, 58 A.L.R.2d 1451.

Alienation of affections or criminal conversation case, attachment in, 67 A.L.R.2d 527.

Liquor license as subject to execution or attachment, 40 A.L.R.4th 927.

Joint bank account as subject to attachment, garnishment, or execution by creditor of one joint depositor, 86 A.L.R.5th 527.

Constitutionality.

This chapter, as it read prior to the 1991 amendments, was held unconstitutional, as it denied due process to debtors. Garrison Mem. Hosp. v. Rayer, 453 N.W.2d 787 (N.D. 1990).

Breach of Bond.

The measure of damages for the breach of a forthcoming bond is the value of the property belonging to the defendant which had been seized, or which was subject to seizure under the warrant. Minneapolis Threshing Mach. Co. v. Warner, 52 N.D. 432, 203 N.W. 197, 1925 N.D. LEXIS 38 (N.D. 1925).

Destruction of Writ.

An undertaking to procure a discharge of an attachment destroys the writ. Fox v. Mackenzie, 1 N.D. 298, 47 N.W. 386, 1890 N.D. LEXIS 39 (N.D. 1890).

Issuance of Warrant.

The warrant of attachment is issued by the clerk in a ministerial capacity upon a verified complaint setting forth a proper cause of action for attachment and upon an affidavit setting forth in the language of the statute one or more statutory grounds for attachment. F. Mayer Boot & Shoe Co. v. Ferguson, 17 N.D. 102, 114 N.W. 1091, 1908 N.D. LEXIS 13 (N.D. 1908).

The provisions of this section are mandatory. Dickinson v. First Nat'l Bank, 64 N.D. 273, 252 N.W. 54, 1933 N.D. LEXIS 274 (N.D. 1933).

Levy Presumed Lawful.

A levy under a warrant of attachment is presumed to be lawful. Linn v. Jackson, 5 N.D. 46, 63 N.W. 208, 1895 N.D. LEXIS 5 (N.D. 1895).

Mortgage Foreclosure.

Money in the possession of the sheriff for the redemption of property sold under a mortgage foreclosure is subject to attachment by the creditor of the holder of the certificate of sale, if no duty rests on the sheriff except to pay the money to such holder. 64 N.D. 727, 256 N.W. 178.

Seizure of Goods.

It is the official duty of the sheriff to attach and safely keep the property which the warrant authorizes him to seize. Kukowski v. Emerson-Brantingham Implement Co., 43 N.D. 333, 175 N.W. 706, 1919 N.D. LEXIS 62 (N.D. 1919).

A sheriff is a proper party defendant in an action to recover goods seized. North v. Peters, 138 U.S. 271, 11 S. Ct. 346, 34 L. Ed. 936, 1891 U.S. LEXIS 2081 (U.S. 1891).

Collateral References.

Attachment 144-158, 191, 192.

6 Am. Jur. 2d, Attachment and Garnishment, §§ 261 et seq.

7 C.J.S. Attachment, §§ 137, 179-191, 193-195, 346-367.

Posting of redelivery bond by defendant in attachment as waiver of damages for wrongful attachment, 57 A.L.R.2d 1376.

Constitutionality.

This chapter, as it read prior to the 1991 amendments, was held unconstitutional, as it denied due process to debtors. Garrison Mem. Hosp. v. Rayer, 453 N.W.2d 787 (N.D. 1990).

The fact that, under former subdivision 1 (i) of this section, a defendant was about to move to another county without giving security for an alleged debt, without more, was not among the truly unusual “extraordinary situations requiring special protection to a state or creditor interest,” under the test articulated in Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S. Ct. 1820, 23 L. Ed. 2d 349 (1969).Garrison Memorial Hosp. v. Rayer, 453 N.W.2d 787, 1990 N.D. LEXIS 81 (N.D. 1990).

In General.

A judicial decree for sale of property to apply the proceeds on an adjudicated obligation is well within the range of equitable powers of a trial court. Martian v. Martian, 399 N.W.2d 849, 1987 N.D. LEXIS 243 (N.D. 1987).

Constitutionality.

This chapter, as it read prior to the 1991 amendments, was held unconstitutional, as it denied due process to debtors. Garrison Mem. Hosp. v. Rayer, 453 N.W.2d 787 (N.D. 1990).

Constitutionality.

Although former N.D.C.C. § 32-08-24 was construed in Page v. Steinke, 60 N.D. 685, 236 N.W. 261 (1931) to place on creditor the burden of showing that grounds for attachment warrant actually existed and thus would appear to be similar in scope to Louisiana statute upheld by U. S. Supreme Court, fact that North Dakota statutes required debtor to file bond to obtain a post-seizure discharge hearing was a significant distinction and was one of several reasons cited for holding that former chapter 32-08 did not achieve the requisite constitutional accommodation of the conflicting interests of the debtor and creditor. Guzman v. Western State Bank, 516 F.2d 125, 1975 U.S. App. LEXIS 15713 (8th Cir. N.D. 1975).

Dissolution of Attachment.

The giving of an undertaking to procure a discharge of an attachment does not merely release the levy but destroys the writ itself, and, thereafter, a motion to dissolve the attachment as being irregularly or improvidently issued will not be entertained. Fox v. Mackenzie, 1 N.D. 298, 47 N.W. 386, 1890 N.D. LEXIS 39 (N.D. 1890).

A defendant cannot move for dissolution of an attachment on the sole ground of his nonownership of the attached property. Gilmore v. Olson, 54 N.D. 633, 210 N.W. 341, 1926 N.D. LEXIS 69 (N.D. 1926).

The dissolution of an attachment may be sought for the reason that the ground of attachment alleged in the affidavit does not exist and did not exist when the affidavit was made. Page v. Steinke, 60 N.D. 685, 236 N.W. 261, 1931 N.D. LEXIS 220 (N.D. 1931).

Growing Crop.

The filing in the office of the register of deeds [now recorder] of notice of abandonment of a levy of attachment on a growing crop does not relieve the attaching creditor from damages subsequently accruing to the crop, where no actual notice was given to the owner. Kelly v. Stockgrowers Credit Corp., 66 N.D. 209, 263 N.W. 717, 1935 N.D. LEXIS 189 (N.D. 1935).

Irregularity.

An attachment which appears to have been “irregularly issued” must be discharged. Golden Valley County v. Curtin, 52 N.D. 372, 203 N.W. 189, 1925 N.D. LEXIS 35 (N.D. 1925).

If a clerk issues the warrant without an undertaking, purporting upon its face to be executed by a surety, the attachment is “irregularly issued” and it is, therefore, proper for defendant to move to discharge the same. Golden Valley County v. Curtin, 52 N.D. 372, 203 N.W. 189, 1925 N.D. LEXIS 35 (N.D. 1925).

Motion to Set Aside.

Writ of attachment will be set aside on motion where summons has not been properly served. Rhode Island Hosp. Trust Co. v. Keeney, 1 N.D. 411, 48 N.W. 341, 1891 N.D. LEXIS 9 (N.D. 1891).

The legality of the levy should not be raised on motion to set aside and dismiss the attachment because of defect in proceedings prior to levy. Thornley v. Lawbaugh, 31 N.D. 651, 143 N.W. 348, 1913 N.D. LEXIS 85 (N.D. 1913).

Vacation of Attachment.

The court may vacate an attachment where the affidavit states that the action to recover damages for deceit was false. Sonnesyn v. Akin, 12 N.D. 227, 97 N.W. 557, 1903 N.D. LEXIS 55 (N.D. 1903).

Collateral References.

Attachment 237-239.

6 Am. Jur. 2d, Attachment and Garnishment, §§ 435-472.

7 C.J.S. Attachment, §§ 491-494.

Appealability, prior to final judgment, of order discharging or vacating attachment or refusing to do so, 19 A.L.R.2d 640.

Constitutionality.

This chapter, as it read prior to the 1991 amendments, was held unconstitutional, as it denied due process to debtors. Garrison Mem. Hosp. v. Rayer, 453 N.W.2d 787 (N.D. 1990).

Application of Statute.

The statute applies to a case where the property of a third person is levied upon while in possession of the attachment debtor under such circumstances as to raise a presumption that it is owned by him. Probstfield v. Hunt, 17 N.D. 572, 118 N.W. 226, 1908 N.D. LEXIS 87 (N.D. 1908).

Burden of Proof.

Where both the title and possession of the property levied upon are in dispute, the burden of proof is upon the plaintiff to establish the title and right of possession at the time of the levy. Wipperman Mercantile Co. v. Robbins, 23 N.D. 208, 135 N.W. 785, 1912 N.D. LEXIS 76 (N.D. 1912).

Growing Crop.

The filing in the office of the register of deeds [now recorder] of notice of abandonment of a levy of attachment on a growing crop does not relieve the attaching creditor from damages subsequently accruing to the crop where no actual notice was given to the owner. Kelly v. Stockgrowers Credit Corp., 66 N.D. 209, 263 N.W. 717, 1935 N.D. LEXIS 189 (N.D. 1935).

Indemnity from Attaching Creditor.

A sheriff executing a warrant of attachment in case of an adverse claim may demand indemnity from the attaching creditor. Ravely v. Isensee, 57 N.D. 286, 221 N.W. 38, 1928 N.D. LEXIS 125 (N.D. 1928).

The sheriff may require an indemnifying undertaking from a levying creditor where a third-party claim is asserted, and may release the levy if the undertaking is not furnished. Kelly v. Baird, 64 N.D. 346, 252 N.W. 70, 1934 N.D. LEXIS 205 (N.D. 1934).

Notice.

The giving of the notice prescribed by the statute is not necessary where a sheriff attaches and sells property in the possession of and owned by a third person not named in the writ. Aber v. Twichell, 17 N.D. 229, 116 N.W. 95, 1908 N.D. LEXIS 48 (N.D. 1908).

Sufficiency of Third-Party Claim.

A third-party claim under the provisions of this section sufficiently alleges ownership if it states that at all times, including the time of seizure, the property was and still is the property of the claimants, that the ground of their right and title to the possession of the property is that they purchased the same with their own money and paid therefor, without stating from whom the property was acquired or the consideration paid. Coverdell v. Erickson, 39 N.D. 579, 168 N.W. 367, 1918 N.D. LEXIS 58 (N.D. 1918).

Collateral References.

Attachment 280 et seq.

6 Am. Jur. 2d, Attachment and Garnishment, §§ 587 et seq.

7 C.J.S. Attachment, §§ 409 et seq.

In General.

A judgment creditor may proceed by garnishment against any person after securing a judgment against such person in a court of competent jurisdiction. In re Da-Sota Elevator Co., 135 B.R. 873, 1991 Bankr. LEXIS 1976 (Bankr. D.N.D. 1991).

Legislative Intent.

The elimination of the execution requirement in the garnishment statutes suggests the legislature favors cost reduction and simplification of the process for both parties. Mid-Dakota Clinic, P.C. v. Kolsrud, 1999 ND 244, 603 N.W.2d 475, 1999 N.D. LEXIS 255 (N.D. 1999).

Out of State Judgment.

North Dakota law applied to wages and lease payments received by debtor, and subject to garnishment, as a result of an Arizona judgment transferred to North Dakota through N.D.C.C. ch. 28-20.1. American Standard Life & Accident Ins. Co. v. Speros, 494 N.W.2d 599, 1993 N.D. LEXIS 1 (N.D. 1993).

Applicability.

North Dakota law applied to wages and lease payments received by debtor, and subject to garnishment, as a result of an Arizona judgment transferred to North Dakota through N.D.C.C. ch. 28-20.1. American Standard Life & Accident Ins. Co. v. Speros, 494 N.W.2d 599, 1993 N.D. LEXIS 1 (N.D. 1993).

Income that a N.D.C.C. ch. 7 debtor earned through self-employment in a consulting business was not considered wages under N.D.C.C. § 28-22-18, and the debtor could not claim the income earned pre-petition as an exemption under N.D.C.C. § 32-09.1-03. In re Domitrovich, 2008 Bankr. LEXIS 99 (Bankr. D.N.D. Jan. 10, 2008).

Garnishee.

Where the creditor is garnishing wages, the garnishee is the debtor’s employer. In re Heilman, 39 B.R. 492, 1984 Bankr. LEXIS 5809 (Bankr. D.N.D. 1984).

Issuance Date of Garnishee Summons.

The issuance of the garnishee summons is construed to be the date the summons is served upon the debtor’s employer. In re Heilman, 39 B.R. 492, 1984 Bankr. LEXIS 5809 (Bankr. D.N.D. 1984).

Notice.

Under N.D.C.C. § 32-09.1-01(3), a client’s payments to an attorney’s professional corporation is not compensation paid or payable for personal services. Because fees paid or payable to a professional law corporation are not earnings under the statute, as a matter of law a 10-day notice is not required under N.D.C.C. § 32-09.1-04 before issuing a garnishee summons. PHI Fin. Servs. v. Johnston Law Office, P.C., 2020 ND 22, 937 N.W.2d 885, 2020 N.D. LEXIS 7 (N.D. 2020).

Where Garnishee Is Interested Person.

Employer-garnishee in this particular garnishment action was an interested person and therefore not qualified under the rules to personally serve papers upon the employee-debtor. In re Heilman, 39 B.R. 492, 1984 Bankr. LEXIS 5809 (Bankr. D.N.D. 1984).

Collateral References.

Garnishment 90-103.

6 Am. Jur. 2d, Attachment and Garnishment, §§ 387, 388.

38 C.J.S. Garnishment, §§ 149-165.

Garnishee’s duty to give debtor notice of garnishment prior to delivery of money without judgment against the garnishee on the debt, 36 A.L.R.4th 824.

Sufficiency, as to content, of notice of garnishment required to be served upon garnishee, 20 A.L.R.5th 229.

Garnishee.

Where the creditor is garnishing wages, the garnishee is the debtor’s employer. In re Heilman, 39 B.R. 492, 1984 Bankr. LEXIS 5809 (Bankr. D.N.D. 1984).

Where Garnishee Is Interested Person.

Employer-garnishee in this particular garnishment action was an interested person and therefore not qualified under the rules to personally serve papers upon the employee-debtor. In re Heilman, 39 B.R. 492, 1984 Bankr. LEXIS 5809 (Bankr. D.N.D. 1984).

Application of Statute.

Where plaintiff never took any issue with the statements, allegations, or matter set up in affidavits of garnishee, all of the statements in the affidavits were conclusive of the truth of the facts therein stated. Brocket Mercantile Co. v. Lemke Imperial Elevator Co., 39 N.D. 37, 166 N.W. 800, 1918 N.D. LEXIS 8 (N.D. 1918).

Joining in Issue.

The plaintiff need not take issue upon a garnishee’s answer which admits that the garnishee has sufficient money to satisfy the claim. Mahon v. Fansett, 17 N.D. 104, 115 N.W. 79, 1907 N.D. LEXIS 6 (N.D. 1907).

Jury Trial.

An issue triable to a jury in a civil action is triable to a jury in a garnishment action, and is not triable anew in the supreme court. Ruble v. Saretzke, 63 N.D. 631, 249 N.W. 716, 1933 N.D. LEXIS 215 (N.D. 1933).

Collateral References.

Garnishment 140, 148.

6 Am. Jur. 2d, Attachment and Garnishment, §§ 395, 396.

Good Cause.

The “good cause” standard in this section does not conflict with N.D.R.Civ.P. 60(b), but simply describes the more liberal application of “excusable neglect” under Rule 60(b) for relief from a default judgment against a garnishee. Murdoff v. Murdoff, 517 N.W.2d 402, 1994 N.D. LEXIS 123 (N.D. 1994).

Vacation of Default Judgment.

The trial court did not abuse its discretion by finding both lack of gross neglect and good cause to vacate a wife’s default judgment, where the wife filed a garnishment summons and disclosure on a company which she believed owed her husband money to collect a divorce judgment. Although the company’s failure to return the disclosure form did not comply with N.D.C.C. § 32-09.1-09, the disclosure form itself described how it could dispute any indebtedness to the husband, and the company was no stranger to legal procedures and should have known a response was required, the trial court determined that it’s nondisclosure was the result of an honest mistake, not gross neglect or recklessness. Murdoff v. Murdoff, 517 N.W.2d 402, 1994 N.D. LEXIS 123 (N.D. 1994).

Exempt Property.

A garnishee could plead as a defense to garnishment that the property in his possession is exempt to the defendant. Congress Candy Co. v. Farmer, 73 N.D. 174, 12 N.W.2d 796, 1944 N.D. LEXIS 52 (N.D. 1944).

Measurement of Liability.

The garnishee’s liability is measured by his responsibility and relation to the defendant. Hatcher v. Plumley, 38 N.D. 147, 164 N.W. 698, 1917 N.D. LEXIS 24 (N.D. 1917).

Superior Position.

A plaintiff cannot place himself, by garnishment, in a position superior to defendant’s position. Hatcher v. Plumley, 38 N.D. 147, 164 N.W. 698, 1917 N.D. LEXIS 24 (N.D. 1917); Retterath v. Smith, 60 N.D. 83, 232 N.W. 606, 1930 N.D. LEXIS 211 (N.D. 1930).

Validity.

A judgment entered against both defendant and garnishee by default was void where it was entered without jurisdiction. ATWOOD v. TUCKER, 26 N.D. 622, 145 N.W. 587, 1914 N.D. LEXIS 157 (N.D. 1914).

Collateral References.

Garnishment 105-116, 174-185, 234-238.

6 Am. Jur. 2d, Attachment and Garnishment, §§ 417 et seq.

38 C.J.S. Garnishment, §§ 172-190, 242-255, 293-295.

Form of judgment against garnishee respecting obligation payable in installments, 7 A.L.R.2d 680.

Garnishment in action on note or bond, not resulting in sale of mortgaged property, as precluding foreclosure of real estate mortgage, 37 A.L.R.2d 959.

Right of garnishee, other than bank holding deposit, to set off claims not due or certain when garnishment is served, 57 A.L.R.2d 700.

Branch bank or main office of bank having branches, attachment and garnishment of funds in, 12 A.L.R.3d 1088.

Banks: post-Snidach status of banker’s right to set off bank’s claim against depositor’s funds, 65 A.L.R.3d 1284.